exhibit101






Execution Version  WBD (US) 59102819v5 THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT   THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT  AGREEMENT (this “Amendment”), dated as of October 20, 2022 (the “Third Amendment  Effective Date”), is entered into by and among MOUNTAINEER GAS COMPANY, a West  Virginia corporation (“Borrower”), the LENDERS party hereto, and TRUIST BANK, as  Administrative Agent, Letter of Credit Issuer and Swing Line Lender (the “Administrative  Agent”).  RECITALS  WHEREAS, Borrower, the Lenders party thereto and Truist Bank (formerly known as  Branch Banking and Trust Company), as Administrative Agent, Letter of Credit Issuer and Swing  Line Lender, entered into that certain Third Amended and Restated Credit Agreement, dated as of  November 26, 2019 (as amended by that certain First Amendment to Third Amended and Restated  Credit Agreement, dated as of November 13, 2020, and as amended by that certain Second  Amendment to Third Amended and Restated Credit Agreement, dated as of April 9, 2021, and as  otherwise amended, restated, amended and restated, supplemented or otherwise modified prior to  the date hereof, the “Credit Agreement”);  WHEREAS, Borrower desires to amend the Credit Agreement for the purpose of (a)  increasing the aggregate Revolver Commitment, (b) replacing the interest rate benchmark and  revising the benchmark replacement provisions therein and (c) amending certain other terms and  provisions, and the Lenders party hereto (by act of the Required Lenders) have agreed to provide  such requested amendments to the Credit Agreement, subject to the terms and conditions herein.  NOW, THEREFORE, in consideration of the premises and the mutual covenants contained  herein, and for other good and valuable consideration, the receipt and sufficiency of which are  hereby acknowledged, the parties hereto agree as follows:  AGREEMENT  1. Incorporation of Recitals. The introductory paragraph and recitals to this Amendment are incorporated herein into, and fully made a part of, the body of this Amendment.  2. Definitions. Capitalized terms used herein (including in the recitals hereof) and not otherwise defined herein shall have the meanings provided in the Credit Agreement (as amended  by this Amendment).  3. Amendments to Credit Agreement. (a) As of the Third Amendment Effective Date, the body of the Credit Agreement is hereby amended in its entirety to read as set forth on Exhibit A.  (b) As of the Third Amendment Effective Date, Schedule 2.01 of the Credit Agreement is hereby amended in its entirety to read as set forth on Exhibit B.  Exhibit 10.1 





 






2  WBD (US) 59102819v5  (c) As of the Third Amendment Effective Date, Schedule 4.26 of the Credit Agreement is hereby amended in its entirety to read as set forth on Exhibit C.  (d) As of the Third Amendment Effective Date, the exhibits to the Credit Agreement are hereby amended in their entirety to read as set forth on Exhibit D.   4. Conditions Precedent. This Amendment shall be effective upon receipt by the Administrative Agent of each of the following:  (a) a counterpart of this Amendment, a Notice of Continuation or Conversion, a Revolver Note for the account of each Lender and a Swing Advance Note for the account  of the Swing Line Lender, in each case duly executed by Borrower, Required Lenders, and  the Administrative Agent, as applicable, each in form and substance satisfactory to the  Administrative Agent;   (b) a certificate of an officer of the Borrower, signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative  of the Borrower, dated as of the Third Amendment Effective Date, certifying as to copies  of the following items:  (i) the Borrower’s Organizational Documents (or a certification  that the Borrower’s Organizational Documents have not been amended since the Closing  Date); (ii) the Borrower’s Operating Documents (or a certification that the Borrower’s  Organizational Documents have not been amended since the Closing Date); (iii) if  applicable, a certificate of the Secretary of State of the Borrower’s state of organization as  to the good standing or existence of the Borrower, and (iv) the Organizational Action, if  any, taken by the board of directors of the Borrower or the members, managers, trustees,  partners or other applicable Persons authorizing the Borrower’s execution, delivery and  performance of this Amendment and the Second Amended and Restated Notes;  (c) opinions of Latham & Watkins LLP, as New York counsel to the Borrower, and Steptoe & Johnson PLLC, as West Virginia counsel to the Borrower, each dated as of  the Third Amendment Effective Date in a form reasonably satisfactory to Administrative  Agent and covering such matters relating to the transactions contemplated hereby as the  Administrative Agent may reasonably request;   (d) a certificate of the chief financial officer (or other comparable financial officer) of the Borrower, certifying that (x) as of the Third Amendment Effective Date, all  representations and warranties of the Borrower and the Guarantors contained in the Credit  Agreement and the other Loan Documents are true and correct (except to the extent any  such representation or warranty is expressly stated to have been made as of a specific date,  in which case such representation or warranty is true and correct as of such date), except  that the representations and warranties contained in Section 4.04(a) of the Credit  Agreement shall be deemed to refer to the most recent statements furnished pursuant to  clauses (a) and (b), respectively, of Section 5.01 of the Credit Agreement, (y) immediately  after giving effect to this Amendment (including any Borrowings in connection therewith  and the application of the proceeds thereof), the Borrower is in compliance with the  covenants contained in Article V of the Credit Agreement, and (z) no Default has occurred  and is continuing, both immediately before and after giving effect to this Amendment  





 






3  WBD (US) 59102819v5  (including any Borrowings in connection therewith and the application of the proceeds  thereof); and  (e) all fees and other amounts due and payable on or prior to the Third Amendment Effective Date, including reimbursement or payment of all out-of-pocket  expenses (including reasonable fees, charges, and disbursements of Womble Bond  Dickinson (US) LLP, counsel to the Administrative Agent) required to be reimbursed or  paid by Borrower hereunder, under any other Loan Document, and under any agreement  with the Administrative Agent for preparation and execution of this Amendment.  5. Miscellaneous Provisions. (a) This Amendment shall be deemed to be, and is, a Loan Document. (b) As of the Third Amendment Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement, as  amended by this Amendment.  (c) Borrower (i) acknowledges and consents to all of the terms and conditions of this Amendment; (ii) agrees that this Amendment, and all documents executed in  connection herewith, do not operate to reduce or discharge its obligations under the Credit  Agreement or the other Loan Documents, or any certificates, documents, agreements, and  instruments executed in connection therewith; and (iii) affirms all of its obligations under  the Loan Documents.  (d) Borrower hereby represents and warrants to the Administrative Agent and the Lenders as follows:  (i) Borrower has taken all necessary action to authorize the execution, delivery, and performance of this Amendment;  (ii) this Amendment has been duly executed and delivered by Borrower and constitutes Borrower’s legal, valid, and binding obligations, enforceable in  accordance with its terms, except as such enforceability may be subject to: (A)  bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,  moratorium or similar laws affecting creditors’ rights generally; and (B) general  principles of equity (regardless of whether such enforceability is considered in a  proceeding at law or in equity);  (iii) no consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required  in connection with the execution, delivery, or performance by Borrower of this  Amendment; and  (iv) the representations and warranties of Borrower set forth in Article IV of the Credit Agreement (as amended hereby), in each of the other Loan  Documents, or in any document furnished in connection therewith, are true and  correct in all material respects (other than any representation and warranty that is  





 






4  WBD (US) 59102819v5  expressly qualified by materiality, in which case such representation and warranty  is true and correct in all respects) as of the Third Amendment Effective Date with  the same effect as if made on and as of the Third Amendment Effective Date (except  that Section 4.04(a) of the Credit Agreement shall be deemed to refer to the audited  consolidated balance sheet as of September 30, 2021), unless such representations  and warranties specifically refer to an earlier date, in which case such representation  and warranty is true and correct in all respects as of such earlier date.  (e) This Amendment may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall constitute  one and the same agreement. Each party may execute this Amendment in electronic format  and delivery of such electronic executed document to the other party shall be proof of  execution by the party thereto. Signatures hereunder that are images of manually executed  signatures transmitted by telecopy, facsimile, or other electronic format (including, without  limitation, “pdf,” “tif,” or “jpg”) or other electronic signatures shall be of the same legal  effect, validity, and enforceability as a manually executed signature.  (f) THIS AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE, OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, OR  OTHERWISE) BASED UPON, ARISING OUT OF, OR RELATING TO THIS  AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL  BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF  THE STATE OF NORTH CAROLINA.  [Signatures Begin on Following Page] 





 






IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly  executed by its duly appointed representatives as of the Third Amendment Effective Date. BORROWER: MOUNTAINEER GAS COMPANY,  a West Virginia corporation Name: Scott F. Klemm Its: Vice President, Chief Regulatory Officer & Assistant  Treasurer [Signature Page to Third Amendment to Third Amended and Restated Credit Agreement] 





 






ADMINISTRATIVE AGENT: TRUIST BANK, as Administrative Agent, as Letter of Credit Issuer,  and as Shying Line Lender / / By: Name: D. Spencer Murphy  Its: Senior Vice President [Signature Page to Third Amendment to Third Amended and Restated Credit Agreement] 





 






LENDER: TRUIST BANK, as a Lender By: Name: D. Spencer Murphy  Its: Senior Vice President [Signature Page to Third Amendment to Third Amended and Restated Credit Agreement] 





 






LENDER: CITY NATIONAL BANK OF WEST  VIRGINIA, as a Lender vy?By: Namer Jack Cavender Its: Executive Vice President [Signature Page to Third Amendment to Third Amended and Restated Credit Agreement] WBD (US) 59102819v4 





 






LENDER: THE HUNTINGTON NATIONAL BANK, as a Lender if By: W^VMJtLWs/ Name: Nolan Woodbury^ Its: Assistant Vice President [Signature Page to Third Amendment to Third Amended and Restated Credit Agreement] WBD (US) 59102819v4 





 






 





 






11  WBD (US) 59102819v5 EXHIBIT A  Conformed Copy of Credit Agreement  (attached) 





 






Conformed to that certain First Amendment to Third Amended and Restated Credit Agreement,  dated as of November 13, 2020;  that certain Second Amendment to Third Amended and Restated Credit Agreement, dated as of  April 9, 2021; and  that certain Third Amendment to Third Amended and Restated Credit Agreement, dated as of  October 20, 2022.  WBD (US) 57324867v5 THIRD AMENDED AND RESTATED CREDIT AGREEMENT  dated as of  November 26, 2019  among  MOUNTAINEER GAS COMPANY  as Borrower,  The Lenders Party Hereto  and  TRUIST BANK,  as Administrative Agent, Letter of Credit Issuer and Swing Line Lender  TRUIST SECURITIES, INC.,  as Lead Arranger  





 






i  WBD (US) 57324867v5  TABLE OF CONTENTS  ARTICLE I  DEFINITIONS .....................................................................................................................1  SECTION 1.01. Definitions..............................................................................................1  SECTION 1.02. Accounting Terms and Determinations ...............................................34  SECTION 1.03. Use of Defined Terms ..........................................................................34  SECTION 1.04. Terms Generally...................................................................................34  SECTION 1.05. Amendment and Restatement of Existing Credit Agreement ..............35  SECTION 1.06. Rates. ....................................................................................................35  ARTICLE II  THE CREDIT ....................................................................................................................36  SECTION 2.01. Commitments to Make Advances. .......................................................36  SECTION 2.02. Method of Borrowing Advances. .........................................................38  SECTION 2.03. Continuation and Conversion Elections...............................................39  SECTION 2.04. Notes ....................................................................................................40  SECTION 2.05. Maturity of Advances ..........................................................................40  SECTION 2.06. Interest Rates. .......................................................................................40  SECTION 2.07. Fees. .....................................................................................................41  SECTION 2.08. Optional Termination or Reduction of Commitments .........................42  SECTION 2.09. Termination of Commitments ..............................................................42  SECTION 2.10. Optional Prepayments. .........................................................................42  SECTION 2.11. Mandatory Prepayments. .....................................................................43  SECTION 2.12. General Provisions as to Payments. .....................................................45  SECTION 2.13. Computation of Interest and Fees ........................................................50  SECTION 2.14. Increase in Commitments. ...................................................................51  SECTION 2.15. Offer to Prepay in the Event of a Change in Control. ..........................54  SECTION 2.16. Options to Extend ................................................................................55  ARTICLE III  CONDITIONS TO BORROWINGS .................................................................................57  SECTION 3.01. Conditions to Closing and First Borrowing .........................................57  SECTION 3.02. Conditions to All Borrowings ..............................................................59  ARTICLE IV  REPRESENTATIONS AND WARRANTIES..................................................................60  SECTION 4.01. Existence and Power ............................................................................60  SECTION 4.02. Organizational and Governmental Authorization; No  Contravention .......................................................................................60  SECTION 4.03. Binding Effect ......................................................................................61  SECTION 4.04. Financial Information...........................................................................61  SECTION 4.05. Litigation ..............................................................................................61  SECTION 4.06. Compliance with ERISA......................................................................62  SECTION 4.07. Compliance with Laws; Payment of Taxes .........................................63  SECTION 4.08. Subsidiaries ..........................................................................................63  SECTION 4.09. Investment Company Act, Etc. ............................................................63  SECTION 4.10. All Consents Required .........................................................................63  SECTION 4.11. Ownership of Property; Liens ..............................................................64  





 






ii  WBD (US) 57324867v5  SECTION 4.12. Material Contracts; No Default ............................................................64  SECTION 4.13. Full Disclosure .....................................................................................64  SECTION 4.14. Environmental Matters.........................................................................64  SECTION 4.15. [Reserved] ............................................................................................65  SECTION 4.16. Capital Securities .................................................................................65  SECTION 4.17. Margin Stock ........................................................................................65  SECTION 4.18. [Reserved] ............................................................................................66  SECTION 4.19. Burdensome Restrictions .....................................................................66  SECTION 4.20. Labor Matters .......................................................................................66  SECTION 4.21. Patents, Trademarks, Etc......................................................................66  SECTION 4.22. Insurance ..............................................................................................66  SECTION 4.23. [Reserved]. ...........................................................................................66  SECTION 4.24. Ownership Structure ............................................................................67  SECTION 4.25. Reports Accurate; Disclosure ..............................................................67  SECTION 4.26. Existing Indebtedness; Future Liens ....................................................67  SECTION 4.27. [Reserved]. ...........................................................................................68  SECTION 4.28. Schedules .............................................................................................68  SECTION 4.29. Survival of Representations and Warranties, Etc. ...............................68  SECTION 4.30. Loans and Investments .........................................................................68  SECTION 4.31. [Reserved] ............................................................................................68  SECTION 4.32. USA Patriot Act; OFAC ......................................................................68  SECTION 4.33. EEA Financial Institution ....................................................................69  SECTION 4.34. No LLC Division .................................................................................69  ARTICLE V  COVENANTS ...................................................................................................................69  SECTION 5.01. Information ..........................................................................................69  SECTION 5.02. Inspection of Property, Books and Records .........................................72  SECTION 5.03. [Reserved]. ...........................................................................................72  SECTION 5.04. [Reserved]. ...........................................................................................72  SECTION 5.05. [Reserved]. ...........................................................................................72  SECTION 5.06. Debt ......................................................................................................72  SECTION 5.07. Maximum Leverage .............................................................................73  SECTION 5.08. Disposition of Assets ...........................................................................73  SECTION 5.09. Interest Coverage Ratio........................................................................73  SECTION 5.10. Loans or Advances ...............................................................................73  SECTION 5.11. Restricted Payments. ............................................................................74  SECTION 5.12. Investments ..........................................................................................74  SECTION 5.13. Liens .....................................................................................................74  SECTION 5.14. Maintenance of Existence, etc. ............................................................76  SECTION 5.15. Maintenance of Debt Rating ................................................................76  SECTION 5.16. Consolidations, Mergers and Acquisitions ..........................................76  SECTION 5.17. Use of Proceeds....................................................................................78  SECTION 5.18. Compliance with Laws; Payment of Taxes .........................................78  SECTION 5.19. Insurance ..............................................................................................78  SECTION 5.20. Change in Fiscal Year ..........................................................................79  SECTION 5.21. Maintenance of Property ......................................................................79  SECTION 5.22. Environmental Notices.........................................................................79  





 






iii  WBD (US) 57324867v5  SECTION 5.23. Environmental Matters.........................................................................79  SECTION 5.24. [Reserved]. ...........................................................................................79  SECTION 5.25. [Reserved]. ...........................................................................................79  SECTION 5.26. Transactions with Affiliates .................................................................79  SECTION 5.27. Joinder of Subsidiaries. ........................................................................80  SECTION 5.28. Plans and Benefit Arrangements ..........................................................80  SECTION 5.29. Partnerships and Joint Ventures ...........................................................80  SECTION 5.30. Plans and Benefit Arrangements. .........................................................80  SECTION 5.31. No Modification of Management Agreement ......................................81  SECTION 5.32. Modifications of Organizational Documents .......................................82  SECTION 5.33. [Reserved]. ...........................................................................................82  SECTION 5.34. Hedge Transactions ..............................................................................82  SECTION 5.35. Guaranties ............................................................................................82  SECTION 5.36. Management Expenses.........................................................................82  SECTION 5.37. Gas Purchase Agreements....................................................................82  SECTION 5.38. Limitations on Modification and Prepayments of the Senior  Notes ....................................................................................................82  SECTION 5.39. No LLC Division .................................................................................83  ARTICLE VI  DEFAULTS .......................................................................................................................83  SECTION 6.01. Events of Default .................................................................................83  SECTION 6.02. Notice of Default..................................................................................87  SECTION 6.03. Cash Cover ...........................................................................................87  SECTION 6.04. Allocation of Proceeds .........................................................................87  ARTICLE VII  THE ADMINISTRATIVE AGENT ..................................................................................88  SECTION 7.01. Appointment and Authority .................................................................88  SECTION 7.02. Rights as a Lender ................................................................................89  SECTION 7.03. Exculpatory Provisions ........................................................................89  SECTION 7.04. Reliance by Administrative Agent .......................................................90  SECTION 7.05. Delegation of Duties ............................................................................90  SECTION 7.06. Resignation of Administrative Agent ..................................................90  SECTION 7.07. Non-Reliance on Administrative Agent and Other Lenders ................91  SECTION 7.08. No Other Duties, etc. ...........................................................................91  SECTION 7.09. Other Agents ........................................................................................92  SECTION 7.10. Guaranty Matters .................................................................................92  SECTION 7.11. Administrative Agent May File Proofs of Claim .................................92  SECTION 7.12. Certain ERISA Matters. .......................................................................93  ARTICLE VIII  CHANGE IN CIRCUMSTANCES; COMPENSATION ..................................................95  SECTION 8.01. Inability to Determine Interest Rates; Benchmark Replacement  Setting ..................................................................................................95  SECTION 8.02. Illegality ...............................................................................................97  SECTION 8.03. Increased Cost and Reduced Return. ...................................................98  SECTION 8.04. Base Rate Advances Substituted for Affected SOFR Advances .........99  SECTION 8.05. Compensation ....................................................................................100  





 






iv  WBD (US) 57324867v5  SECTION 8.06. Mitigation ...........................................................................................100  ARTICLE IX  MISCELLANEOUS ........................................................................................................101  SECTION 9.01. Notices Generally...............................................................................102  SECTION 9.02. No Waivers ........................................................................................103  SECTION 9.03. Expenses; Indemnity; Damage Waiver. .............................................104  SECTION 9.04. Setoffs; Sharing of Set-Offs; Application of Payments. ....................106  SECTION 9.05. Amendments and Waivers. ................................................................107  SECTION 9.06. Margin Stock Collateral .....................................................................108  SECTION 9.07. Successors and Assigns......................................................................108  SECTION 9.08. Confidentiality ...................................................................................112  SECTION 9.09. Representation by Lenders .................................................................113  SECTION 9.10. Obligations Several ............................................................................113  SECTION 9.11. Survival of Certain Obligations .........................................................114  SECTION 9.12. North Carolina Law ...........................................................................114  SECTION 9.13. Severability ........................................................................................114  SECTION 9.14. Interest................................................................................................114  SECTION 9.15. Interpretation ......................................................................................114  SECTION 9.16. Counterparts; Integration; Effectiveness; Electronic Execution. .......114  SECTION 9.17. Jurisdiction; Waiver of Venue; Service of Process; Waiver of  Jury Trial. ...........................................................................................115  SECTION 9.18. Independence of Covenants ...............................................................116  SECTION 9.19. Cash Collateral ...................................................................................116  SECTION 9.20. Defaulting Lenders.............................................................................117  SECTION 9.21. Patriot Act ..........................................................................................120  SECTION 9.22. Acknowledgement and Consent to Bail-In of Affected  Financial Institutions ..........................................................................120  ARTICLE X  GUARANTY ...................................................................................................................120  SECTION 10.01. Unconditional Guaranty .....................................................................120  SECTION 10.02. Obligations Absolute .........................................................................121  SECTION 10.03. Continuing Obligations; Reinstatement .............................................123  SECTION 10.04. Additional Security, Etc. ....................................................................123  SECTION 10.05. Information Concerning the Borrower...............................................124  SECTION 10.06. Guarantors’ Subordination .................................................................124  SECTION 10.07. Waiver of Subrogation .......................................................................124  SECTION 10.08. Enforcement .......................................................................................124  SECTION 10.09. Miscellaneous ....................................................................................125  SECTION 10.10. Acknowledgement Regarding Any Supported QFCs ........................125  ARTICLE XI  LETTER OF CREDIT FACILITY ..................................................................................126  SECTION 11.01. Obligation to Issue .............................................................................126  SECTION 11.02. Types and Amounts ...........................................................................126  SECTION 11.03. Conditions ..........................................................................................127  SECTION 11.04. Issuance of Letters of Credit. .............................................................127  





 






v  WBD (US) 57324867v5  SECTION 11.05. Reimbursement Obligations; Duties of the Letter of Credit  Issuer. .................................................................................................129  SECTION 11.06. Participations......................................................................................130  SECTION 11.07. Payment of Reimbursement Obligations. ..........................................132  SECTION 11.08. Replacement of the Letter of Credit Issuer ........................................133  SECTION 11.09. Cash Collateralization ........................................................................133  SECTION 11.10. Assumption of Risk; Exoneration. .....................................................134  





 






vi  WBD (US) 57324867v5  SCHEDULES*  SCHEDULE 2.01  ........................................................................... Revolver Commitments  SCHEDULE 4.05 .................................................................................................. Litigation  SCHEDULE 4.06 ................................................... Exceptions to Compliance with ERISA  SCHEDULE 4.14 .............................................................................Environmental Matters  SCHEDULE 4.20 .......................................................... Collective Bargaining Agreements  SCHEDULE 4.22 .................................................................................................. Insurance  SCHEDULE 4.24 .............................................................................................. Subsidiaries  SCHEDULE 4.26 ........................................................ Existing Indebtedness; Future Liens  SCHEDULE 5.10 ................................................................................... Loans or Advances  SCHEDULE 5.12 .................................................. Investments (as of September 30, 2019)  SCHEDULE 5.13 ........................................................................................ Permitted Liens  SCHEDULE 5.16 ............................................................................. Permitted Acquisitions  SCHEDULE 5.26 ..................................................................... Transactions with Affiliates  EXHIBITS*  EXHIBIT A .................................................................. Form of Notice of Borrowing  EXHIBIT B-1 ...........................................................................Form of Revolver Notes  EXHIBIT B-2 ................................................................. Form of Swing Advance Note  EXHIBIT C ....................................... Form of Notice of Continuation or Conversion  EXHIBIT D ............................................. Forms of U.S. Tax Compliance Certificate  EXHIBIT E ..................................................................... Form of Joinder Agreement  EXHIBIT F ............................................ Form of Notice of Letter of Credit Issuance  EXHIBIT G ..................................................... Form of Assignment and Assumption  EXHIBIT H .............................................................. Form of Compliance Certificate  EXHIBIT I ....................................................... Form of Letter of Credit Application  EXHIBIT J .............................................. Form of Dividend Compliance Certificate  *Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of  Regulation S-K. A copy of any omitted schedule or exhibit will be furnished to the  Securities and Exchange Commission upon request. 





 






1  WBD (US) 57324867v5  THIRD AMENDED AND RESTATED CREDIT AGREEMENT  THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT is dated as of  November 26, 2019 among MOUNTAINEER GAS COMPANY, a West Virginia corporation,  as Borrower, the LENDERS party hereto and TRUIST BANK, as Administrative Agent, Letter  of Credit Issuer and Swing Line Lender.  RECITALS  A. Certain of the parties hereto are parties to a Second Amended and Restated Credit Agreement dated as of December 1, 2014 by and among the Borrower, Truist Bank (formerly  known as Branch Banking and Trust Company), as Administrative Agent, Letter of Credit Issuer  and Swing Line Lender, and the Lenders identified therein (the “Existing Credit Agreement”),  and certain other Loan Documents entered into in connection with (and as defined in) the  Existing Credit Agreement (collectively with the Existing Credit Agreement, the “Existing Loan  Documents”), pursuant to which the Lenders party thereto provided credit facilities to the  Borrower in the aggregate principal amount of up to $100,000,000, subject to increase from time  to time to a maximum aggregate principal amount of $170,000,000 as set forth in the Existing  Credit Agreement.  B. The parties wish to enter into this Agreement, and the Borrower wishes to issue the Notes described herein, which shall amend, restate, replace and supersede (but not cause a  novation of) the Existing Credit Agreement and the other Existing Loan Documents and which  hereinafter shall govern the terms and conditions under which the Lenders shall provide senior  revolving and letter of credit facilities to the Borrower.  NOW, THEREFORE, in consideration of the mutual agreements, provisions and  covenants contained herein, the parties hereby agree as follows:  ARTICLE I  DEFINITIONS  SECTION 1.01. Definitions.  The terms as defined in this Section 1.01 shall, for all  purposes of this Agreement and any amendment hereto (except as otherwise expressly provided  or unless the context otherwise requires), have the meanings set forth herein:  “2017 Note Purchase Agreement” means that certain Note Purchase Agreement dated as  of April 12, 2017, as may be amended from time to time, by and among the Borrower and the  purchasers party thereto pursuant to which the Borrower issued the 2027 Senior Notes, the 2029  Senior Notes, and the 2032 Senior Notes.  “2019 Note Purchase Agreement” means that certain Note Purchase Agreement dated as  of December 20, 2019, as may be amended from time to time, by and among the Borrower and  the purchasers party thereto pursuant to which the Borrower issued the 2034 Senior Notes.  “2022 Note Purchase Agreement” means that certain Note Purchase Agreement dated as  of June 30, 2022, as may be amended from time to time, by and among the Borrower and the  purchasers party thereto pursuant to which the Borrower issued the 2052 Senior Notes.  





 






  2  WBD (US) 57324867v5  “2027 Senior Notes” means the Mountaineer Gas Company $40,000,000 4.20% Senior  Notes, Series A, due December 20, 2027, issued pursuant to the 2017 Note Purchase Agreement.  “2029 Senior Notes” means the Mountaineer Gas Company $20,000,000 4.27% Senior  Notes, Series B, due December 20, 2029, issued pursuant to the 2017 Note Purchase Agreement.  “2032 Senior Notes” means the Mountaineer Gas Company $40,000,000 4.41% Senior  Notes, Series C, due December 20, 2032, issued pursuant to the 2017 Note Purchase Agreement.  “2034 Senior Notes” means the Mountaineer Gas Company $40,000,000 3.50% Senior  Notes, Series D, due December 20, 2034, issued pursuant to the 2019 Note Purchase Agreement.  “2052 Senior Notes” means the Mountaineer Gas Company $40,000,000 4.49% Senior  Notes, Series E, due August 16, 2052, issued pursuant to the 2022 Note Purchase Agreement  “Accepting Lenders” has the meaning set forth in Section 2.15(d).  “Acquisition” means any transaction or series of related transactions for the purpose of,  or resulting in, directly or indirectly, (a) the acquisition by the Borrower or any Subsidiary of all  or substantially all of the assets of a Person (other than a Subsidiary) or of any business or  division of a Person (other than a Subsidiary), (b) the acquisition by the Borrower or any  Subsidiary of more than 50% of any class of Voting Stock (or similar ownership interests) of any  Person (provided that formation or organization of any Wholly Owned Subsidiary shall not  constitute an “Acquisition” to the extent that the amount of the Investment in such entity is  permitted under Sections 5.10 and 5.12), or (c) a merger, consolidation, amalgamation or other  combination by the Borrower or any Subsidiary with another Person (other than a Subsidiary) if  the Borrower or such Subsidiary is the surviving entity; provided that in any merger involving  the Borrower, the Borrower must be the surviving entity.  “Additional Lender” has the meaning set forth in Section 2.14(a).    “Adjusted Daily Simple SOFR” means, for any day (a “Simple SOFR Rate Day”), a rate  per annum equal to the greater of (a) the sum of (i) SOFR for the day (such day, a “SOFR  Determination Day”) that is five (5)  U.S. Government Securities Business Days prior to (A) if  such Simple SOFR Rate Day is a U.S. Government Securities Business Day, such Simple SOFR  Rate Day or (B) if such Simple SOFR Rate Day is not a U.S. Government Securities Business  Day, the U.S. Government Securities Business Day immediately preceding such Simple SOFR  Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR  Administrator’s Website; provided that if by 5:00 p.m. on the second (2nd) U.S. Government  Securities Business Day immediately following any SOFR Determination Day, SOFR in respect  of such SOFR Determination Day has not been published on the SOFR Administrator’s Website  and a Benchmark Replacement Date with respect to Adjusted Daily Simple SOFR has not  occurred, then SOFR for such SOFR Determination Day will be SOFR as published in respect of  the first preceding U.S. Government Securities Business Day for which such SOFR was  published on the SOFR Administrator’s Website; provided further that SOFR as determined  pursuant to this proviso shall be utilized for purposes of calculation of Adjusted Daily Simple  SOFR for no more than three (3) consecutive Simple SOFR Rate Days and (ii) the Simple SOFR  Adjustment and (b) the Floor.  Any change in Adjusted Daily Simple SOFR due to a change in  





 






3  WBD (US) 57324867v5  SOFR shall be effective from and including the effective date of such change in SOFR without  notice to the Borrower.  “Adjusted Daily Simple SOFR Advance” means, with respect to any Advance, such  Advance that shall bear interest at a rate based upon Adjusted Daily Simple SOFR.  “Adjusted Daily Simple SOFR Borrowing” means a Borrowing consisting of Adjusted  Daily Simple SOFR Advances.  “Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal  to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided, that if  Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term  SOFR shall be deemed to be the Floor   “Adjusted Term SOFR Advance” means, with respect to any Advance, such Advance  that shall bear interest at a rate based upon Adjusted Term SOFR.  “Adjusted Term SOFR Borrowing” means a Borrowing consisting of Adjusted Term  SOFR Advances.  “Administrative Agent” means Truist Bank, in its capacity as administrative agent for the  Lenders, and its successors and permitted assigns in such capacity.  “Administrative Agent’s Letter Agreement” means that certain fee letter, dated as of  September 22, 2022, among the Borrower, the Administrative Agent and the Lead Arranger  relating to the terms of this Agreement, and certain fees from time to time payable by the  Borrower to the Administrative Agent, together with all amendments and modifications thereto.   If there is any conflict between the provisions of this Agreement and the provisions of the  Administrative Agent’s Letter Agreement, the provisions of this Agreement will control.  “Administrative Questionnaire” means an administrative questionnaire in a form supplied  by the Administrative Agent.  “Advances” means collectively the Revolver Advances and the Swing Advances.   “Advance” means any one of such Advances, as the context may require.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.  “Affiliate” of any Person means (i) any other Person which directly, or indirectly through  one or more intermediaries, controls such Person, (ii) any other Person which directly, or  indirectly through one or more intermediaries, is controlled by or is under common control with  such Person, or (iii) with respect only to the Borrower, “Affiliate” shall include any Person  which owns, directly or indirectly, 10% or more of the Capital Securities of the Borrower or any  Subsidiary or any Person of which the Borrower and its Subsidiaries own, directly or indirectly,  10% or more of the Capital Securities.  As used herein, the term “control” means possession,  directly or indirectly, of the power to direct or cause the direction of the management or policies  of a Person, whether through the ownership of Voting Stock, by contract or otherwise.   





 






4  WBD (US) 57324867v5  “Agreement” means this Credit Agreement, together with all schedules, exhibits and  supplements hereto.  “Annual Statements” has the meaning set forth in Section 4.04(a).  “Applicable Margin” means the percentage rate set forth below corresponding to the  range into which the Borrower’s Debt Rating then falls in accordance with the levels in the table  set forth below or the corresponding Rating Categories of the Rating Agency that is providing  the Debt Rating (each a “Level”).  Any change in the Borrower’s Debt Rating which would  cause it to move to a different Level in the table shall effect a change in the Applicable Margin  on the first Domestic Business Day of the first calendar month following the date on which such  change occurs.    Level Borrower’s Debt Rating  Applicable  Margin for SOFR  Advances  Applicable  Margin for Base  Rate Advances  Applicable  Margin for  Unused  Commitment Fee  1 BBB+ or higher 1.00% 0.00% 0.10%  2 BBB 1.25% 0.25% 0.15%  3 BBB- 1.50% 0.50% 0.20%  4 BB+ 1.75% 0.75% 0.25%  5 BB or lower 2.25% 1.25% 0.30%  As of the Third Amendment Effective Date, the Applicable Margin is determined by reference to  Level 2.  If at any time when the Borrower has two (2) Debt Ratings, and such Debt Ratings are split,  then: (A) if the difference between such Debt Ratings is one ratings category, the Applicable  Margin shall be the rate per annum that would be applicable if the higher of the Debt Ratings  were used; and (B) if the difference between such Debt Ratings is two ratings categories or more,  the Applicable Margin shall be the rate per annum that would be applicable if the tier above the  lower of the applicable Debt Ratings were used.  If at any time when the Borrower has three (3)  or more Debt Ratings, and such Debt Ratings are split, then: (A) if the difference between the  highest and the lowest such Debt Ratings is one ratings category, the Applicable Margin shall be  the rate per annum that would be applicable if the highest of the Debt Ratings were used; and (B)  if the difference between such Debt Ratings is two ratings categories or more, the Applicable  Margin shall be the rate per annum that would be applicable if the tier above the lowest of the  two (2) highest Debt Ratings were used.  “Applicable Percentage” means with respect to any Lender, the percentage of the total  Revolver Commitments represented by such Lender’s Revolver Commitment.  If the Revolver  Commitments have terminated or expired, the Applicable Percentages shall be determined based  upon the Revolver Commitments most recently in effect, giving effect to any assignments.  “Approved Fund” means any Fund that (i) 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, and (ii) is approved in writing by the Borrower (such approval not to be unreasonably withheld, conditioned or delayed). 





 






  5  WBD (US) 57324867v5  “Assignment and Assumption” means an assignment and assumption entered into by a  Lender and an Eligible Assignee (with the consent of any party whose consent is required by  Section 9.07 or the definition of “Eligible Assignee”), and accepted by the Administrative Agent,  in substantially the form of Exhibit G or any other form approved by the Administrative Agent.  “Auto-Extension Letter of Credit” has the meaning set forth in Section 11.04(d).  “Availability” means one or more of the following: Unrestricted Assets, Unused  Commitments (after giving effect to any Revolver Commitments obtained pursuant to an  effective Commitment Increase pursuant to Section 2.14) or available borrowing capacity under  an effective commitment letter or other written agreement to refinance the Senior Notes in form  and substance satisfactory to the Administrative Agent.     “Availability Period” means the period from and including the Closing Date to but  excluding the Termination Date.  “Available Tenor” shall mean, as of any date of determination and with respect to the  then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such  Benchmark (or component thereof) that is or may be used for determining the length of an  interest period pursuant to this Agreement or (y) otherwise, any payment period for interest  calculated with reference to such Benchmark (or component thereof) that is or may be used for  determining any frequency of making payments of interest calculated with reference to such  Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the  avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of  “Interest Period” pursuant to Section 8.01(e).  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the  European Union, the implementing law, regulation rule or requirement for such EEA Member  Country from time to time which is described in the EU Bail-In Legislation Schedule and (b)  with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as  amended from time to time) and any other law, regulation or rule applicable in the United  Kingdom relating to the resolution of unsound or failing banks, investment firms or other  financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11 U.S.C.  §§101, et. seq.), as amended from time to time.  “Base Rate” means for any Base Rate Advance for any day, the rate per annum equal to  the highest as of such day of (i) the Prime Rate, (ii) one-half of one percent (0.5%) above the  Federal Funds Rate, and (iii) one percent (1.0%) above Adjusted Term SOFR for an Interest  Period of one month commencing on the first day of the applicable Interest Period, in each  instance as of such date of determination.  For purposes of determining the Base Rate for any  day, changes in the Prime Rate, the Federal Funds Rate or Adjusted Term SOFR, as applicable,  





 






6  WBD (US) 57324867v5  shall be effective on the date of each such change.  For purposes of Article VIII, references to  “SOFR Advances” shall include any Base Rate Advances the interest rate on which is  determined by reference to the Adjusted Term SOFR component of this definition. If the Base  Rate shall be less than zero, it shall be deemed to be zero for purposes of this Agreement and the  other Loan Documents.  “Base Rate Advance” means, with respect to any Advance, such Advance that shall bear  interest at a rate based upon the Base Rate.  For the avoidance of doubt, Swing Advances are  Base Rate Advances.    “Base Rate Borrowing” means a Borrowing consisting of Base Rate Advances made to  the Borrower.  “Benchmark” shall mean, initially, Adjusted Daily Simple SOFR or the Term SOFR  Reference Rate, as applicable; provided that if a Benchmark Transition Event has occurred with  respect to Adjusted Daily Simple SOFR or the Term SOFR Reference Rate, as applicable, or the  then-current Benchmark, then “Benchmark” shall mean the applicable Benchmark Replacement  to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant  to Section 8.01(b).  “Benchmark Replacement” shall mean with respect to any Benchmark Transition Event,  the first alternative set forth in the order below that can be determined by the Administrative  Agent for the applicable Benchmark Replacement Date (provided that with respect to the  Benchmark that is Adjusted Daily Simple SOFR, clause (b) below shall be deemed the first  alternative):  (a) Adjusted Daily Simple SOFR; and (b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or  recommendation of a replacement benchmark rate or the mechanism for determining  such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing  market convention for determining a benchmark rate as a replacement to the then-current  Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related  Benchmark Replacement Adjustment.  If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would  be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the  purposes of this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” shall mean, with respect to any replacement of  the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread  adjustment, or method for calculating or determining such spread adjustment, (which may be a  positive or negative value or zero) that has been selected by the Administrative Agent and the  Borrower giving due consideration to (a) any selection or recommendation of a spread  adjustment, or method for calculating or determining such spread adjustment, for the  replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the  Relevant Governmental Body or (b) any evolving or then-prevailing market convention for  determining a spread adjustment, or method for calculating or determining such spread  





 






7  WBD (US) 57324867v5  adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark  Replacement for Dollar-denominated syndicated credit facilities.  “Benchmark Replacement Date” shall mean a date and time determined by the  Administrative Agent, which date shall be no later than the earliest to occur of the following  events with respect to the then-current Benchmark:  (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information  referenced therein and (ii) the date on which the administrator of such Benchmark (or the  published component used in the calculation thereof) permanently or indefinitely ceases  to provide all Available Tenors of such Benchmark (or such component thereof); or  (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the  calculation thereof) has been determined and announced by the regulatory supervisor for  the administrator of such Benchmark (or such component thereof) to be non- representative; provided that such non-representativeness will be determined by reference  to the most recent statement or publication referenced in such clause (c) and even if any  Available Tenor of such Benchmark (or such component thereof) continues to be  provided on such date.  For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have  occurred in the case of clause (a) or (b) above with respect to any Benchmark upon the  occurrence of the applicable event or events set forth therein with respect to all then-current  Available Tenors of such Benchmark (or the published component used in the calculation  thereof).  “Benchmark Transition Event” shall mean the occurrence of one or more of the following  events with respect to the then-current Benchmark:  (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation  thereof) announcing that such administrator has ceased or will cease to provide all  Available Tenors of such Benchmark (or such component thereof), permanently or  indefinitely; provided that, at the time of such statement or publication, there is no  successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof);  (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in  the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New  York, an insolvency official with jurisdiction over the administrator for such Benchmark  (or such component), a resolution authority with jurisdiction over the administrator for  such Benchmark (or such component) or a court or an entity with similar insolvency or  resolution authority over the administrator for such Benchmark (or such component),  which states that the administrator of such Benchmark (or such component) has ceased or  will cease to provide all Available Tenors of such Benchmark (or such component  thereof) permanently or indefinitely; provided that, at the time of such statement or  





 






8  WBD (US) 57324867v5  publication, there is no successor administrator that will continue to provide any  Available Tenor of such Benchmark (or such component thereof); or  (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in  the calculation thereof) announcing that all Available Tenors of such Benchmark (or such  component thereof) are not, or as of a specified future date will not be, representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have  occurred with respect to any Benchmark if a public statement or publication of information set  forth above has occurred with respect to each then-current Available Tenor of such Benchmark  (or the published component used in the calculation thereof).  “Benchmark Unavailability Period” shall mean, the period (if any) (a) beginning at the  time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark  Replacement has replaced the then-current Benchmark for all purposes hereunder and under any  Loan Document in accordance with Section 8.01 and (b) ending at the time that a Benchmark  Replacement has replaced the then-current Benchmark for all purposes hereunder and under any  Loan Document in accordance with Section 8.01.  “Beneficial Ownership Certificate” means a certification regarding beneficial ownership  as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Arrangement” means an “employee benefit plan,” within the meaning of Section  3(3) of ERISA, which is neither a Plan nor a Multiemployer Plan and which is maintained,  sponsored or otherwise contributed to by any member of the Controlled Group.  “Borrower” means Mountaineer Gas Company, a West Virginia corporation, and its  successors and its permitted assigns.  “Borrowing” means a borrowing hereunder consisting of Advances made to the  Borrower: (i) at the same time by all of the Lenders, in the case of Syndicated Borrowings, or (ii)  by the Swing Line Lender, for Swing Advances.  For the avoidance of doubt, any Swing Line  Borrowing, Base Rate Borrowing, Adjusted Term SOFR Borrowing, Adjusted Daily Simple  SOFR Borrowing or Term SOFR Index Rate Borrowing is a Borrowing.   “Capital Securities” means, with respect to any Person, all of the shares of capital stock  of (or other ownership, membership 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, membership or profit interests in) such Person, all of the securities  convertible into or exchangeable for shares of capital stock of (or other ownership, membership  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,  membership 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.  





 






9  WBD (US) 57324867v5  “Cash” means money, currency or a credit balance in any demand or deposit account  with a United States federal or state chartered commercial bank of recognized standing having  capital and surplus in excess of $500 million, so long as such bank has not been a Defaulting  Lender for more than three (3) Domestic Business Days after notice to Borrower (which notice  may be given by telephone or e-mail), which bank or its holding company has a short-term  commercial paper rating of: (a) at least A-1 or the equivalent by S&P or at least P-1 or the  equivalent by Moody’s, or (b) at least A-2 or the equivalent by S&P or at least P-2 or the  equivalent by Moody’s (or, in the case of a current Lender only, if not rated by S&P or Moody’s,  such Lender is rated by another rating agency acceptable to the Administrative Agent and such  Lender’s rating by such rating agency is not lower than its rating by such rating agency on the  Closing Date) and (i) all amounts and assets credited to such account are directly and fully  guaranteed or insured by the United States of America or any agency thereof (provided that the  full faith and credit of the United States is pledged in support thereof) or (ii) such bank is  otherwise acceptable at all times and from time to time to the Administrative Agent in its sole  discretion.    “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative  Agent, for the benefit of the Letter of Credit Issuer or Lenders, as collateral for Letter of Credit  Obligations or obligations of Lenders to fund participations in respect of Letter of Credit  Obligations, cash or deposit account balances or, if the Administrative Agent and the Letter of  Credit Issuer shall agree in their sole discretion, other credit support, in each case pursuant to  documentation in form and substance satisfactory to the Administrative Agent and the Letter of  Credit Issuer in their reasonable discretion.  “Cash Collateral” shall have a meaning correlative  to the foregoing and shall include the proceeds of such Cash Collateral and other credit support;  provided, that with respect to Cash Collateral provided by the Borrower, the Borrower shall be  permitted to use the proceeds of Swing Advances and Revolver Advances as Cash Collateral to  the extent that the Borrower is entitled to request and receive any such Advances in accordance  with the provisions of this Agreement.  “Cash Equivalents” means Investments described in clauses (i), (ii) and (iii) of Section  5.12.  “CERCLA” means the Comprehensive Environmental Response Compensation and  Liability Act, 42 U.S.C. §9601 et seq. and its implementing regulations and amendments.  “Certificate of Division” means a certificate, registration statement or any other  document required to be filed with any applicable governmental authority in order to legally  effectuate an LLC Division, including, without limitation, a certificate of division as described in  Section 18-217 of the Delaware Limited Liability Company Act, as amended from time to time.  “Change in Control” means either (a) Mountaintop Energy Holdings LLC (“MEHLLC”) fails for any reason whatsoever to own directly or indirectly (i) the beneficial interest of more  than 50% of the issued and outstanding Capital Securities of the Borrower and (ii) the legal and  beneficial interest of more than 50% of the issued and outstanding Capital Securities of the  Borrower that are entitled to vote for members of the board of directors or equivalent governing  body of the Borrower, or (b) UGI and its Affiliates, collectively, fail for any reason whatsoever  to own directly or indirectly (i) the beneficial interest of more than 50% of the issued and  outstanding Capital Securities of MEHLLC and (ii) the legal and beneficial interest of more than  





 






10  WBD (US) 57324867v5  50% of the issued and outstanding Capital Securities of MEHLLC that are entitled to vote for  members of the board of directors or equivalent governing body of MEHLLC.  “Change in Law” means the occurrence, after the date of this Agreement, of any of the  following: (a) the adoption or taking effect of any applicable law, rule, regulation or treaty of any  Governmental Authority, (b) any change in any applicable law, rule, regulation or treaty of any  Governmental Authority or in the administration, interpretation, implementation or application  thereof by any Governmental Authority or (c) the making or issuance of any request, rule,  guideline or directive (whether or not having the force of law) by any Governmental Authority;  provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street  Reform and Consumer Protection Act and all applicable requests, rules, guidelines or directives  thereunder or issued in connection therewith and (y) all applicable requests, rules, guidelines or  directives promulgated by the Bank for International Settlements, the Basel Committee on  Banking Supervision (or any successor or similar authority) or the United States or foreign  regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a  “Change in Law”, regardless of the date enacted, adopted or issued.  “Closing Certificate” has the meaning set forth in Section 3.01(d).  “Closing Date” means November 26, 2019.  “Code” means the Internal Revenue Code of 1986, as amended, or any successor Federal  tax code.  Any reference to any provision of the Code shall also be deemed to be a reference to  any successor provision or provisions thereof.  “Commitment Increase” has the meaning set forth in Section 2.14(a).  “Commitment Increase Date” has the meaning set forth in Section 2.14(c).  “Compliance Certificate” has the meaning set forth in Section 5.01(c).  “Conforming Changes” shall mean, with respect to either the use or administration of an  initial Benchmark or the use, administration, adoption or implementation of any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the  definition of “Base Rate”, the definition of “Domestic Business Day”, the definition of “U.S.  Government Securities Business Day”, the definition of “Interest Period” or any similar or  analogous definition (or the addition of a concept of “interest period”), timing and frequency of  determining rates and making payments of interest, timing of borrowing requests or prepayment,  conversion or continuation notices, the applicability and length of lookback periods, the  applicability of Section 8.05 and other technical, administrative or operational matters) that the  Administrative Agent decides may be appropriate to reflect the adoption and implementation of  any such rate or to permit the use and administration thereof by the Administrative Agent in a  manner substantially consistent with market practice (or, if the Administrative Agent decides that  adoption of any portion of such market practice is not administratively feasible or if the  Administrative Agent determines that no market practice for the administration of any such rate  exists, in such other manner of administration as the Administrative Agent decides is reasonably  necessary in connection with the administration of this Agreement and the other Loan  Documents).  





 






  11  WBD (US) 57324867v5  “Consolidated EBITDA” means and includes, for the Borrower and the Consolidated  Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net Income for such  period; plus, (b) to the extent such amounts were deducted in computing Consolidated Net  Income for such period:  (i) Consolidated Interest Expense for such period; (ii) income tax  expense of the Borrower and its Consolidated Subsidiaries; (iii) Depreciation and Amortization  for such period; and (iv) other non-cash items of expense including, but not limited to, the  aggregate expenses of the Loan Parties related to this Agreement and the Note Purchase  Agreements (such aggregate expenses to be the amount deducted by the Loan Parties in the  determination of Consolidated Net Income), all determined on a consolidated basis in accordance  with GAAP; minus (c) other non-cash items of income of the Loan Parties, in each case set forth  in clauses (a) through (c) above for such period.    “Consolidated Interest Expense” for any period means all interest (including without  limitation the interest component of capital leases), whether expensed or capitalized, in respect  of Debt of the Borrower or any of its Consolidated Subsidiaries outstanding during such period  on a consolidated basis, but excluding, amortization of Debt expense and amortization of gain or  loss on reacquired Debt.  Computations of Consolidated Interest Expense on a pro forma basis  for Debt having a variable interest rate shall be calculated at the rate in effect on the date of any  determination.  “Consolidated Net Income” means, for any period the net income of the Borrower and  the Consolidated Subsidiaries as set forth or reflected on the most recent consolidated income  statement of the Borrower and its Consolidated Subsidiaries prepared in accordance with GAAP,  but excluding the following:    (a) the amount by which capital gains and other extraordinary credits exceed  capital losses and extraordinary charges;  (b) any gain arising from any write-up of assets or from the acquisition of any  shares of capital stock or other equity interest of the Borrower or any other Loan Party;  (c) earnings of any Person realized prior to the date it becomes a Loan Party  or its assets are acquired by merger or otherwise by the Borrower or any other Loan  Party;  (d) earnings of any Person (other than a Loan Party) in which the Borrower or  any other Loan Party has an ownership interest, not received by the Borrower or such  other Loan Party in the form of cash distributions, provided that any earnings excluded  pursuant to this clause (d) may be included in the year in which they are actually received  as cash distributions;  (e) earnings denominated in any currency which is not freely convertible into  Dollars, provided that any earnings excluded pursuant to this clause (e) may be included  in the year in which they are actually converted into Dollars;  (f) any portion of the earnings of any Loan Party (other than the Borrower)  which for any reason is unavailable for payment of dividends to the Borrower or any  other Loan Party;  





 






12  WBD (US) 57324867v5  (g) earnings of any Person (other than a Loan Party, except the Borrower) realized prior to the date it acquires the assets of the Borrower by merger or otherwise;  and  (h) any gain arising from the termination of a Plan. “Consolidated Subsidiary” means at any date any Subsidiary or other entity the accounts  of which, in accordance with GAAP, would be consolidated with those of the Borrower in its  consolidated financial statements as of such date.  “Consolidated Total Assets” means the book value, determined on a consolidated basis in  accordance with GAAP, of all assets of the Borrower and its Consolidated Subsidiaries.  “Contamination” means the presence or release or threat of release of Hazardous  Materials in, on, under or emanating to or from any Property, which pursuant to Environmental  Laws requires notification or reporting to a Governmental Authority, or which pursuant to  Environmental Laws requires the investigation, cleanup, removal, remediation, containment,  abatement of or other response action or which otherwise constitutes a violation of  Environmental Laws.  “Controlled Group” means all members of a controlled group of corporations and all  trades or businesses (whether or not incorporated) under common control which, together with  any Loan Party, are treated as a single employer under Section 414 of the Code.  “Credit Exposure” means, as to any Lender at any time, the sum of (i) the aggregate  outstanding principal amount of the Revolver Advances by such Lender, plus (ii) such Lender’s  Applicable Percentage of the aggregate outstanding principal amount of all Swing Advances and  Letter of Credit Obligations.  “Credit Party Expenses” means, without limitation, (a) all reasonable and documented  out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, in connection  with this Agreement and the other Loan Documents, including without limitation (i) the  reasonable fees, charges and disbursements of (A) counsel for the Administrative Agent, (B)  outside consultants for the Administrative Agent, (D) commercial finance examinations, and (E)  all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in  respect of the Obligations; and (ii) in connection with (A) the syndication of the credit facilities  provided for herein, (B) the administration, management, execution and delivery of this  Agreement and the other Loan Documents, and the preparation, negotiation, administration and  management of any amendments, modifications or waivers of the provisions of this Agreement  and the other Loan Documents (whether or not the transactions contemplated thereby shall be  consummated), or (C) the enforcement or protection of its rights in connection with this  Agreement or the Loan Documents, and (b) with respect to the Letter of Credit Issuer, and its  Affiliates, all reasonable and documented out-of-pocket expenses incurred in connection with the  issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment  thereunder; and (c) all reasonable and documented out-of-pocket expenses incurred by the  Lenders that are not the Administrative Agent, the Letter of Credit Issuer or any Affiliate of any  of them, after the occurrence and during the continuance of an Event of Default in connection  with any workout, restructuring or negotiations in respect of the Obligations.    





 






13  WBD (US) 57324867v5  “Debt” of any Person means at any date, without duplication, (i) all obligations of such  Person for borrowed money (whether current or long-term); (ii) all obligations of such Person  evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (iii) all  obligations of such Person to pay the deferred purchase price of property or services, except  trade accounts payable arising in the ordinary course of business and, in each case, not past due  for more than thirty (30) days after due; (iv) all obligations of such Person as lessee under capital  leases; (v) all obligations of such Person to reimburse any bank or other Person in respect of  amounts payable under a banker’s acceptance, bank guarantees, surety bonds and similar  instruments; (vi) all Redeemable Preferred Securities of such Person; (vii) all obligations  (absolute or contingent) of such Person to reimburse any bank or other Person in respect of  amounts which are available to be drawn or have been drawn under a letter of credit (including  standby and commercial) or similar instrument; (viii) all Debt of others secured by (or for which  the holder of such Debt has an existing right, contingent or otherwise, to be secured by) a Lien  on or payable out of the proceeds from any asset of such Person, whether or not such Debt is  assumed by such Person; (ix) all Debt of others Guaranteed by such Person; (x) all obligations of  such Person with respect to interest rate protection agreements, foreign currency exchange  agreements or other hedging agreements (valued as the termination value thereof computed in  accordance with a method approved by the International Swap Dealers Association and agreed to  by such Person in the applicable hedging agreement, if any); (xi) all obligations of such Person  under any synthetic lease, tax retention operating lease, Sale/Leaseback transaction, asset  securitization, off-balance sheet loan or other off-balance sheet financing product; (xii) all  obligations of such Person to purchase securities or other property arising out of or in connection  with the sale of the same or substantially similar securities or property; (xiii) all obligations of  such Person created or arising under any conditional sale or other title retention agreement with  respect to property acquired by such Person; and (xiv) all Hybrid Securities.  The Debt of any  Person shall include the Debt of any other entity (including any partnership in which such Person  is a general partner) to the extent such Person is liable therefor as a result of such Person’s  ownership interest in or other relationship with such entity, except to the extent the terms of such  Debt provide that such Person is not liable therefor.  For purposes hereof, the amount of any  direct obligation arising under letters of credit (including standby and commercial), bankers’  acceptances, bank guaranties, surety bonds and similar instruments shall be the maximum  amount available to be drawn thereunder.    “Debt Rating” shall mean the Borrower’s senior unsecured debt rating assigned by the  Rating Agency.  “Debtor Relief Laws” means the Bankruptcy Code, 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 condition or event which constitutes an Event of Default or which  with the giving of notice or lapse of time or both would, unless cured or waived in writing,  become an Event of Default.   “Default Rate” means on any day, a per annum interest rate equal to the sum of 2% plus  the Base Rate plus the Applicable Margin which may be applicable to any Advance (irrespective  of whether any such type of Advance is actually outstanding hereunder).  





 






14  WBD (US) 57324867v5  “Defaulting Lender” means, subject to Section 9.20(b), any Lender that (a) has failed to  (i) fund all or any portion of its Advances within three Domestic Business Days after the date such Advances were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Letter of Credit 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 Advances) within three Domestic Business Days after the date when due, (b) has notified the Borrower, the Administrative Agent, the Letter of Credit 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 an Advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within five Domestic 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 (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by 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, or (iii) become the subject of a Bail-In Action. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 9.20(b)) upon delivery of written notice of such determination to the Borrower, the Letter of Credit Issuer, the Swing Line Lender and each Lender. “Depreciation and Amortization” means for any period an amount equal to the sum of all  depreciation and amortization expenses of the Borrower and its Consolidated Subsidiaries for  such period, as determined on a consolidated basis in accordance with GAAP.  “Disposition” or “Dispose” means the sale, trade, transfer, license, lease or other  disposition (including any Sale/Leaseback Transaction) of any property by the Borrower or any  Subsidiary (including the Capital Securities of any Subsidiary), including any sale, assignment,  transfer or other disposal, with or without recourse, of any notes or accounts receivable or any  rights and claims associated therewith, but excluding any loss of, damage to or destruction of, or  





 






15  WBD (US) 57324867v5  any condemnation or other taking for public use of, any property of the Borrower or any  Subsidiaries.  “Divided LLC” means any LLC which has been formed upon the consummation of a  LLC Division.  “Dividend Compliance Certificate” has the meaning assigned to such term in Section  5.11.  “Dollars” or “$” means dollars in lawful currency of the United States of America.  “Domestic Business Day” means any day except a Saturday, Sunday or other day on  which commercial banks in North Carolina are authorized or required by law to close.   “Domestic Subsidiary” means any Subsidiary which is organized under the laws of any  state or territory of the United States of America.  “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country which is subject to the supervision of an EEA  Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of  an institution described in clause (a) of this definition, or (c) any financial institution established  in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)  of this definition and is subject to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union,  Iceland, Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any person  entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.      “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved  Fund, and (d) any other Person (other than a natural person) approved by (i) the Administrative  Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each  such approval not to be unreasonably withheld or delayed); provided that notwithstanding the  foregoing, “Eligible Assignee” shall not include the Borrower, any of the Borrower’s Affiliates  or Subsidiaries, any Defaulting Lender or any natural person.  “Environmental Authorizations” means all licenses, permits, orders, approvals, notices,  registrations or other authorizations for conducting the business of a Loan Party or any  Subsidiary of a Loan Party required by any applicable Environmental Law.   “Environmental Laws” means all federal, state, local and foreign laws and any consent  decrees, settlement agreements, judgments, orders or directives issued by or entered into with a  Governmental Authority pertaining or relating to: (i) pollution or pollution control; (ii) protection  of human health or the environment; (iii) employee safety in the workplace; (iv) the presence,  use, management, generation, manufacture, processing, extraction, treatment, recycling, refining,  reclamation, labeling, transport, storage, collection, distribution, disposal or release or threat of  





 






16  WBD (US) 57324867v5  release of Hazardous Materials; (v) the presence of Contamination; (vi) the protection of  endangered or threatened species; and (vii) the protection of Environmentally Sensitive Areas.  “Environmental Notices” means any written notice by any Person or a Governmental  Authority setting forth a cause of action for personal injury or property damage, natural resource  damage, contribution or indemnity for response costs, civil or administrative penalties, criminal  fines or penalties, or declaratory or equitable relief arising under any Environmental Laws or any  order, notice of violation, citation, subpoena, request for information or other written notice or  demand of any type issued by a Governmental Authority pursuant to any Environmental Laws.  “Environmental Releases” means releases as defined in CERCLA or under any  applicable Environmental Law and shall include, in any event and without limitation, any release  of petroleum or petroleum related products.  “Environmentally Sensitive Area” means (i) any wetland as defined by applicable  Environmental Laws; (ii) any area designated as a coastal zone pursuant to applicable Laws,  including Environmental Laws; (iii) any area of historic or archeological significance or scenic  area as defined or designated by applicable Laws, including Environmental Laws; (iv) habitats of  endangered species or threatened species as designated by applicable Laws, including  Environmental Laws; or (v) a floodplain or other flood hazard area as defined pursuant to any  applicable Laws.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended  from time to time, or any successor law and all rules and regulations from time to time  promulgated thereunder.  Any reference to any provision of ERISA shall also be deemed to be a  reference to any successor provision or provisions thereof.   “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 set forth in Section 6.01.   “Excluded Taxes” means, with respect to any Recipient, (a) taxes imposed on or  measured by its overall net income (however denominated), and franchise taxes imposed on it (in  lieu of net income taxes), in each case, (i) imposed by the jurisdiction (or any political  subdivision thereof) under the laws of which such recipient is organized or in which its principal  office is located or, in the case of any Lender, in which its applicable lending office is located or  (ii) that are Other Connection Taxes, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) in the case of a Foreign Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.12(e), (d) any tax, assessment or other governmental charge that would not have been imposed but for a failure by any Lender, the Letter of Credit Issuer, the Administrative Agent, or any other legal or beneficial holder or any foreign financial institution through which payments on the Borrowings under this Agreement are made to comply with any applicable certification, 





 






17  WBD (US) 57324867v5  documentation, information or other reporting requirement concerning the nationality, residence,  identity, direct or indirect ownership of or investment in, or connection with the United States of  America of the applicable Lender, Letter of Credit Issuer, Administrative Agent, or any other  legal or beneficial holder or any foreign financial institution through which payments on the  Borrowings under this Agreement are made if such compliance is required by Sections 1471 or  1472 of the Code or any federal regulation promulgated or Revenue Ruling, Revenue Procedure,  or Notice (to the extent such Notice provides formal, definitive guidance) issued by the U.S.  Internal Revenue Service thereunder as a precondition to relief or exemption from such tax,  assessment or other governmental charge (collectively, “FATCA”), and (e) any taxes attributable  to its failure to comply with Section 2.12(e)(v).  “Existing Credit Agreement” has the meaning given such term in the Recitals.  “Existing Loan Documents” has the meaning given such term in the Recitals.  “Extension of Credit”  shall mean, as to any Lender or the Letter of Credit Issuer, as  applicable, the making of an Advance by such Lender, any conversion or continuation of a  Borrowing pursuant to Section 2.03, or the issuance, extension or renewal of a Letter of Credit.  “Facing Fee” has the meaning given such term in Section 2.07(c).  “FATCA” has the meaning set forth in the definition of Excluded Taxes.  “Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if  necessary, to the next higher 1/100th of 1%) equal to the weighted average of the rates on  overnight Federal funds transactions with members of the Federal Reserve System arranged by  Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on  the Domestic Business Day next succeeding such day, provided that (i) if the day for which such  rate is to be determined is not a Domestic Business Day, the Federal Funds Rate for such day  shall be such rate on such transactions on the next preceding Domestic Business Day as so  published on the next succeeding Domestic Business Day, and (ii) if such rate is not so published  for any day, the Federal Funds Rate for such day shall be the average rate charged to Truist Bank  on such day on such transactions as determined by the Administrative Agent.  “First Extended Maturity Date” means November 26, 2025.  “First Option to Extend” means Borrower’s option, subject to the terms and conditions of  that certain Section hereof entitled Options to Extend, to extend the term of this Agreement from  the Original Maturity Date to the First Extended Maturity Date.  “Fiscal Quarter” means any fiscal quarter of the Borrower.  “Fiscal Year” means any fiscal year of the Borrower.  “Fitch” means Fitch IBCA, Duff & Phelps, a division of Fitch, Inc. and its successors.  “Floor” shall mean a rate of interest equal to 0%.  





 






18  WBD (US) 57324867v5  “Foreign Lender” means any Lender that is 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 of America, each State thereof and the District of Columbia shall be  deemed to constitute a single jurisdiction.    “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to  the Letter of Credit Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding  Letter of Credit Obligations other than Letter of Credit Obligations as to which such Defaulting  Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized by  the Borrower or such Defaulting Lender in accordance with the terms of this Agreement; and (b)  with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of  Swing Advances other than Swing Advances as to which such Defaulting Lender’s participation  obligation has been reallocated to other Lenders or Cash Collateralized by the Borrower or such  Defaulting Lender in accordance with the terms of this Agreement.  “Fund” means any Person (other than a natural person) that is (or will be) engaged in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions  of credit in the ordinary course of its business.  “GAAP” means generally accepted accounting principles applied on a basis consistent  with those which, in accordance with Section 1.02, are to be used in making the calculations for  purposes of determining compliance with the terms of this Agreement.  “Governmental Authority” means the government of the United States of America or any  other nation, or of any political subdivision thereof, whether state or local, and any agency,  authority, instrumentality, regulatory body, court, central bank or other entity exercising  executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or  pertaining to government (including any supra-national bodies such as the European Union or  the European Central Bank).  “Guarantee” by any Person means any obligation, contingent or otherwise, of such  Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and,  without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or  otherwise, of such Person (i) to secure, purchase or pay (or advance or supply funds for the  purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership  arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to  provide collateral security, to take-or-pay, or to maintain financial statement conditions or  otherwise) or (ii) entered into for the purpose of assuring in any other manner the obligee of such  Debt or other obligation of the payment thereof or to protect such obligee against loss in respect  thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for  collection or deposit in the ordinary course of business.  The term “Guarantee” used as a verb has  a corresponding meaning.  “Guaranteed Obligations” means the Obligations, including without limitation, any and  all liabilities, indebtedness and obligations of any and every kind and nature, heretofore, now or  hereafter owing, arising, due or payable from the Borrower to one or more of the Lenders, the  Letter of Credit Issuer, the Administrative Agent, or any of them, arising under or evidenced by  this Agreement, the Notes or any other Loan Document.  





 






19  WBD (US) 57324867v5  “Guarantors” means collectively all direct and indirect Material Subsidiaries of the  Borrower or Guarantors acquired, formed or otherwise in existence after the Closing Date.  “Hazardous Materials” includes, without limitation, (a) solid or hazardous waste, as  defined in the Resource Conservation and Recovery Act of 1980, 42 U.S.C. §6901 et seq. and its  implementing regulations and amendments, or in any applicable state or local law or regulation,  (b) any “hazardous substance,” “pollutant” or “contaminant,” as defined in CERCLA, or in any applicable state or local law or regulation, (c) gasoline, or any other petroleum product or by- product, including crude oil or any fraction thereof, (d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or in any applicable state or local law or regulation and (e) insecticides, fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or in any applicable state or local law or regulation, as each such Act, statute or regulation may be amended from time to time. “Hedge Transaction” of any Person shall mean any transaction (including an agreement  with respect thereto) now existing or hereafter entered into by such Person that is a rate swap,  basis swap, forward rate transaction, commodity swap, interest rate option, foreign exchange  transaction, cap transaction, floor transaction, collateral transaction, forward transaction,  currency swap transaction, cross-currency rate swap transaction, currency option or any other  similar transaction (including any option with respect to any of these transactions) or any  combination thereof, whether linked to one or more interest rates, foreign currencies, commodity  prices, equity prices or other financial measures.  Notwithstanding the foregoing, any transaction  entered into pursuant to physical gas supply contracts for delivery to any Loan Party, including  forward transactions related thereto, shall not constitute a Hedge Transaction.    “Historical Statements” has the meaning set forth in Section 4.04(a).  “Hybrid Security” shall mean any of the following: (i) beneficial interests issued by a  trust or other entity which constitutes a Loan Party or a Subsidiary of any Loan Party,  substantially all of the assets of which trust or other entity are unsecured Debt of any Loan Party  or any Subsidiary of any Loan Party or proceeds thereof, and all payments of which Debt are  required to be, and are, distributed to the holders of beneficial interests in such trust promptly  after receipt by such trust, or (ii) any shares of Capital Securities or other equity interest that,  other than solely at the option of the issuer thereof, by their terms (or by the terms of any security  into which they are convertible or exchangeable) are, or upon the happening of an event or the  passage of time would be, required to be redeemed or repurchased, in whole or in part, or have,  or upon the happening of an event or the passage of time would have, a redemption or similar  payment.  “Increasing Lender” has the meaning set forth in Section 2.14(a).  “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 clause (a), Other Taxes.   “Indemnitee” has the meaning set forth in Section 9.03(b).  “Information” has the meaning set forth in Section 9.08.  





 






20  WBD (US) 57324867v5  “Initial Advances” has the meaning set forth in Section 2.14(e).   “Interest Coverage Ratio” means the ratio determined at the end of each Fiscal Quarter of  (1) Consolidated EBITDA to (2) Consolidated Interest Expense, for the four (4) Fiscal Quarters then ended. “Interest Payment Date” means the first day of each month.  “Interest Period” means: (1) with respect to each Adjusted Term SOFR Borrowing, the  period commencing on the date of such Borrowing and ending on the numerically corresponding  day in the first, third or sixth month thereafter, as the Borrower may elect in the applicable  Notice of Borrowing; provided that:  (a) any Interest Period (subject to clause (c) below) which would otherwise end on a day which is not a Domestic Business Day shall be extended to the next  succeeding Domestic Business Day unless such Domestic Business Day falls in another  calendar month, in which case such Interest Period shall end on the next preceding  Domestic Business Day;  (b) any Interest Period which begins on the last Domestic Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the  appropriate subsequent calendar month) shall, subject to clause (c) below, end on the last  Domestic Business Day of the appropriate subsequent calendar month; and  (c) no Interest Period may be selected that would end after the Maturity Date. (2) with respect to each Term SOFR Index Rate Borrowing, a calendar month (commencing on the first day of each calendar month and ending on the last day of each calendar  month regardless of whether a Term SOFR Index Rate Borrowing is outstanding on either date);  provided that:  (a) the initial Interest Period applicable to Term SOFR Index Rate Borrowings shall mean the period commencing and ending on the Closing Date; and  (b) the last Interest Period applicable to Term SOFR Index Rate Borrowings under this Agreement shall end on the Termination Date.  “Interim Statements” has the meaning set forth in Section 4.04(a).  “Investment” means any investment in any Person, whether by means of (i) purchase or  acquisition of all or substantially all of the assets of such Person (or of a division or line of  business of such Person), (ii) purchase or acquisition of obligations or securities of such Person,  (iii) capital contribution to such Person, (iv) loan or advance to such Person, (v) making of a time deposit with such Person, (vi) Guarantee or assumption of any obligation of such Person or (vii) by any other means. “Joinder Agreement” means a Joinder and Reaffirmation Agreement substantially in the  form of Exhibit E.  





 






21  WBD (US) 57324867v5  “Labor Contracts” means all collective bargaining agreements and other agreements  among any Loan Party or Subsidiary of a Loan Party and a union or other representative of its  employees.  “Laws” means all international, foreign, federal, state and local statutes, treaties, rules,  guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial  precedents or authorities, including the interpretation or administration thereof by any  Governmental Authority charged with the enforcement, interpretation or administration thereof,  and all applicable administrative orders, directed duties, requests, licenses, authorizations and  permits of, and agreements with, any Governmental Authority, in each case whether or not  having the force of law.  “Lead Arranger” means Truist Securities, Inc., in its capacity as lead arranger for the  Lenders, and its successors and permitted assigns in such capacity.  “Lender” means the Persons listed on Schedule 2.01 as having a Revolver Commitment  and any other Person that shall have become party hereto pursuant to an Assignment and  Assumption or Section 2.14, other than any such Person that ceases to be a party hereto pursuant  to an Assignment and Assumption or otherwise pursuant to the terms of this Agreement, and  their respective successors and assigns.  Unless the context requires otherwise, the term  “Lenders” includes the Swingline Lender.  “Lending Office” means, as to each Lender, its office located at its address set forth on its  signature page hereto or its Administrative Questionnaire or such other office as such Lender  may hereafter designate as its Lending Office by notice to the Borrower and the Administrative  Agent.  “Letter of Credit” means a letter of credit issued by the Letter of Credit Issuer for the  account of the Borrower pursuant to Article XI.  “Letter of Credit Application Agreement” means, with respect to a Letter of Credit, such  form of application attached as Exhibit I hereto, subject to any modifications generally  applicable to all letter of credit applicants of the Letter of Credit Issuer; provided, however, that  in the event of any conflict between the terms of any Letter of Credit Application Agreement and  this Agreement, the terms of this Agreement shall control.    “Letter of Credit Expiration Date” means the date that is thirty (30) days prior to the  Termination Date.  “Letter of Credit Fee” has the meaning set forth in Section 2.07(b).  “Letter of Credit Issuer” means Truist Bank and its successors and permitted assigns.  “Letter of Credit Obligations” means, at any particular time, the sum of (a) the  Reimbursement Obligations at such time, (b) the Undrawn Amounts at such time and (c) the  aggregate maximum amount available for drawing under Letters of Credit the issuance of which  has been authorized by the Letter of Credit Issuer but which have not yet been issued.  





 






  22  WBD (US) 57324867v5  “Lien” means, with respect to any asset, any mortgage, deed to secure debt, deed of trust,  lien, pledge, charge, security interest, security title, preferential arrangement which has the  practical effect of constituting a security interest or encumbrance, servitude or encumbrance of  any kind in respect of such asset to secure or assure payment of a Debt or a Guarantee, whether  by consensual agreement or by operation of statute or other law, or by any agreement, contingent  or otherwise, to provide any of the foregoing.  For the purposes of this Agreement, the Borrower  or any Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or  holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital  lease or other title retention agreement relating to such asset.  “LLC” means any limited liability company formed under the laws of any State of the  United States of America.  “LLC Division” means the division or divisive merger of any LLC into multiple entities  or multiple series of the same entity pursuant to any applicable law, including, without  limitation, pursuant to Section 18-217 of the Delaware Limited Liability Company Act, as  amended from time to time.  “Loan Documents” means this Agreement, the Notes, the Letter of Credit Application  Agreements, any other document evidencing or securing the Advances or the Letters of Credit,  and any other document or instrument delivered from time to time in connection with this  Agreement, the Notes, the Letter of Credit Application Agreements, the Advances or the Letters  of Credit, as such documents and instruments may be amended or supplemented from time to  time.  “Loan Parties” means collectively the Borrower and each Guarantor that is now or  hereafter a party to any of the Loan Documents.  “Long Term Debt” means Debt, on a consolidated basis, classified as “long term debt” in  accordance with GAAP, including the current portion thereof and including the outstanding  balance of the Obligations and the Senior Notes.  For the purposes of this definition, the  aggregate outstanding balance of the Revolver Advances, Swing Advances and Letter of Credit  Obligations shall include the average daily balance outstanding, if any, during the twelve (12)  months immediately preceding any Fiscal Quarter or date of determination.  “Management Agreement” means the Shared Services Agreement between UGI, UGI  Utilities, Inc., UGI Energy Services, LLC, AmeriGas Propane, Inc. and Borrower effective June  28, 2022, as the same may be amended, modified, supplemented, restated or replaced from time  to time in accordance with this Agreement.  “Management Expenses” means, for any period, the sum of all expenses, fees, salaries,  awards, bonuses and other compensation paid or incurred (in any case, whether in cash or  otherwise) by any Loan Party or any of its Subsidiaries to any Affiliate (other than Affiliates who  are employees of such Loan Party or Subsidiary) in connection with services rendered with  respect to the management or supervision of any Loan Party or any of its Subsidiaries pursuant to  the Management Agreement or any other management agreement.  





 






  23  WBD (US) 57324867v5  “Margin Stock” means “margin stock” as defined in Regulations T, U or X of the Board  of Governors of the Federal Reserve System, as in effect from time to time, together with all  official rulings and interpretations issued thereunder.  “Material Adverse Effect” means, with respect to any event, act, condition or occurrence  of whatever nature (including any adverse determination in any litigation, arbitration, or  governmental investigation or proceeding), whether singly or in conjunction with any other event  or events, act or acts, condition or conditions, occurrence or occurrences, whether or not related,  a material adverse change in, or a material adverse effect upon (a) the financial condition,  operations, business or properties of the Loan Parties or the Loan Parties and their respective  Subsidiaries taken as a whole, (b) the rights and remedies of the Administrative Agent or the  Lenders under this Agreement, the Notes, the Letters of Credit and the Letter of Credit  Application Agreements, (c) the ability of the Borrower or any other Loan Party to perform its  obligations under this Agreement, the Notes, the Letters of Credit and the Letter of Credit  Application Agreements, as applicable, or (d) the legality, validity or enforceability of this  Agreement, the Notes, the Letters of Credit and the Letter of Credit Application Agreements.  “Material Contract” has the meaning given such term in Section 4.12.  “Material Subsidiary” shall mean any Subsidiary of the Borrower that, together with its  Subsidiaries, (a) generates more than 10% of Consolidated EBITDA on a pro forma basis for the  four (4) consecutive Fiscal Quarters most recently ended or (b) accounts for (or which may be  attributed) 10% or more of the Consolidated Total Assets of the Borrower and its Subsidiaries on  a pro forma basis for the four (4) consecutive Fiscal Quarters most recently ended; provided,  however, that if at any time there are Subsidiaries of the Borrower which are not classified as  “Material Subsidiaries” but which collectively (i) generate more than 10% of Consolidated  EBITDA on a pro forma basis or (ii) account for more than 10% of Consolidated Total Assets of  the Borrower on a pro forma basis, then such Subsidiaries shall be designated as Material  Subsidiaries.  “Maturity Date” means the Original Maturity Date, the First Extended Maturity Date or  the Second Extended Maturity Date, as applicable.  “MEHLLC” has the meaning set forth in the definition of “Change in Control”.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Multiemployer Plan” shall mean any employee benefit plan which is a “multiemployer  plan” within the meaning of Section 4001(a)(3) of ERISA and to which the Borrower or any  member of the Controlled Group is then making or accruing an obligation to make contributions  or, within the preceding five (5) Plan years, has made or had an obligation to make such  contributions.  “Multiple Employer Plan” shall mean a Plan which has two or more contributing  sponsors (including the Borrower or any member of the Controlled Group) at least two of whom  are not under common control, as such a plan is described in Sections 4063 and 4064 of ERISA.  





 






24  WBD (US) 57324867v5  “Net Cash Proceeds” means, with respect to any transaction, an amount equal to the cash  proceeds received by the Borrower or any of its Subsidiaries from or in respect of such  transaction (including, when received, any cash proceeds received as income, other deferred cash  proceeds or other cash proceeds of any non-cash proceeds of such transaction), less any expenses  or charges (including commissions, fees and taxes paid or payable) reasonably incurred by such  Person in respect of such transaction.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver  or amendment that (i) requires the approval of all or all affected Lenders in accordance with the  terms of Section 9.05 and (ii) has been approved by the Required Lenders.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender  at such time.  “Non-Extension Notice Date” has the meaning set forth in Section 11.04(d).  “Note Purchase Agreements” means, collectively, the 2017 Note Purchase Agreement,  the 2019 Note Purchase Agreement and the 2022 Note Purchase Agreement and any other note  purchase agreement entered into for the issuance of Senior Notes after the Third Amendment  Effective Date, in a form substantially similar to the 2017 Note Purchase Agreement, the 2019  Note Purchase Agreement and the 2022 Note Purchase Agreement. “Note Purchase Agreement”  means any one of such Note Purchase Agreements.  “Notes” means collectively the Revolver Notes and Swing Advance Notes and any and  all amendments, consolidations, modifications, renewals, substitutions and supplements thereto  or replacements thereof.  “Note” means any one of such Notes.  “Notice of Borrowing” has the meaning set forth in Section 2.02(a).   “Notice of Continuation or Conversion” has the meaning set forth in Section 2.03.   “Obligations” means the collective reference to all of the following indebtedness  obligations and liabilities:  (a) the due and punctual payment by the Borrower of:  (i) the  principal of and interest on the Notes and Advances (including without limitation, any and all  Revolver Advances and Swing Advances), when and as due, whether at maturity, by  acceleration, upon one or more dates set for prepayment or otherwise and any renewals,  modifications or extensions thereof, in whole or in part; (ii) each payment required to be made  by the Borrower under this Agreement and the Letter of Credit Application Agreements, when  and as due, including payments in respect of reimbursement of disbursements, interest thereon,  and obligations, if any, to provide Cash Collateral and any renewals, modifications or extensions  thereof, in whole or in part; and (iii) all other monetary obligations of the Borrower to the  Lenders, Letter of Credit Issuer or Administrative Agent under this Agreement and the other  Loan Documents to which the Borrower is or is to be a party and any renewals, modifications or  extensions thereof, in whole or in part; (b) the due and punctual performance of all other  obligations of the Borrower under this Agreement and the other Loan Documents to which the  Borrower is or is to be a party, and any renewals, modifications or extensions thereof, in whole  or in part; and (c) the due and punctual payment and performance of all obligations of each of the  





 






  25  WBD (US) 57324867v5  Guarantors under this Agreement and the other Loan Documents to which they are or are to be a  party and any and all renewals, modifications or extensions thereof, in whole or in part.  “OFAC” means The Office of Foreign Assets Control of the U.S. Department of the  Treasury.  “Officer’s Certificate” has the meaning set forth in Section 3.01(e).  “Operating Documents” means with respect to any corporation, limited liability  company, partnership, limited partnership, limited liability partnership or other legally  authorized incorporated or unincorporated entity, the bylaws, operating agreement, partnership  agreement, limited partnership agreement, shareholder agreement or other applicable documents  relating to the governance of such entity.  “Organizational Action” means with respect to any corporation, limited liability  company, partnership, limited partnership, limited liability partnership or other legally  authorized incorporated or unincorporated entity, any corporate, organizational or partnership  action (including any required shareholder, member or partner action), or other similar official  action, as applicable, taken by such entity.  “Organizational Documents” means with respect to any corporation, limited liability  company, partnership, limited partnership, limited liability partnership or other legally  authorized incorporated or unincorporated entity, the articles of incorporation, certificate of  incorporation, articles of organization, certificate of limited partnership or other applicable  organizational or charter documents relating to the creation of such entity.  “Original Maturity Date” means November 26, 2024.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a  result of a present or former connection between such Recipient and the jurisdiction imposing  such Tax (other than connections arising from such Recipient having executed, delivered,  become a party to, performed its obligations under, received payments under, received or  perfected a security interest under, engaged in any other transaction pursuant to or enforced any  Loan Document, or sold or assigned an interest in any Advance or Loan Document).  “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 8.06).  “Parent” means Mountaineer Gas Holdings Limited Partnership, a West Virginia limited  partnership.  “Participant” has the meaning assigned to such term in Section 9.07(d).  “Participant Register” has the meaning assigned to such term in Section 9.07(d).  





 






26  WBD (US) 57324867v5  “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate  Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law  October 26, 2001.  “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to  any or all of its functions under ERISA.  “Permitted Acquisition” has the meaning set forth in Section 5.16.  “Permitted Tax Distribution” means, with respect to the Borrower, for so long as the  Borrower is a member of a group filing a consolidated or combined tax return with a Parent,  payments to such Parent to pay the consolidated or combined tax liabilities of such Parent that is  attributable to the income of the Borrower in any fiscal year not to exceed the amount that the  Borrower would be required to pay in respect of such taxes for such fiscal year were the  Borrower to pay such taxes on its own, taking into account any net operating losses or other  attributes of the Borrower, less any amounts paid directly by the Borrower with respect to such  taxes.  “Person” means a natural person, a corporation, a limited liability company, a partnership  (including without limitation, a joint venture), an unincorporated association, a trust or any other  entity or organization, including, but not limited to, a Governmental Authority.   “Plan” means at any time an employee pension benefit plan which is covered by Title IV  of ERISA or subject to the minimum funding standards under Section 412 of the Code (including  a Multiple Employer Plan but not a Multiemployer Plan) and is maintained by a member of the  Controlled Group for employees of any member of the Controlled Group.  “Plan of Division” means a plan of division adopted by an LLC as required by any  applicable governmental authority in order to legally effectuate an LLC Division, including,  without limitation, a plan of division as described in Section 18-217 of the Delaware Limited  Liability Company Act, as amended from time to time.  “Platform” has the meaning set forth in Section 9.01(d).  “Prime Rate” refers to that prime commercial lending interest rate as announced and  published in The Wall Street Journal from time to time.  If more than one “prime rate” is  published in The Wall Street Journal, the highest rate shall apply.  Truist Bank lends at interest  rates above and below the Prime Rate.  The Prime Rate is not necessarily the lowest or best rate  charged by Truist Bank to its customers or other banks.  “Prohibited Transaction” means any prohibited transaction as defined in Section 4975 of  the Code or Section 406 of ERISA for which neither an individual nor a class exemption has  been issued by the United States Department of Labor.  “Properties” means all real property owned, leased or otherwise used or occupied by a  Loan Party or any Subsidiary of a Loan Party, wherever located.  “Property” means any one of  such Properties.  “Proposed Prepayment Date” has the meaning set forth in Section 2.15(c).  





 






27  WBD (US) 57324867v5  “Purchase Money Security Interest” means Liens upon tangible personal property  securing loans to any Loan Party or Subsidiary of a Loan Party or deferred payments by such  Loan Party or Subsidiary for the purchase of such tangible personal property.  “Quarterly Payment Date” means each March 31, June 30, September 30 and December  31, or, if any such day is not a Domestic Business Day, the next succeeding Domestic Business  Day.  “Rating Agency” means (a) Fitch or (b) another Nationally Recognized Statistical Rating  Organization designated with such status by the Securities and Exchange Commission of the  United States of America which is approved by the Administrative Agent and the Required  Lenders in their reasonable discretion; provided, however, no consent shall be required for  Moody’s or S&P.  “Rating Categories” means:  (1) with respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories);  (2) with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); and  (3) with respect to Fitch, any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories).  “Rating Decline” means a decrease in the rating of the Senior Notes by Fitch,  Moody’s or S&P by one or more gradations (including gradations within Rating Categories as  well as between Rating Categories) to any rating below (i) BBB- in the case of Fitch, (ii) Baa3 in  the case of Moody’s or (iii) BBB- in the case of S&P. In determining whether the rating of the  Senior Notes has decreased by one or more gradations, gradations within Rating Categories,  namely + or – for Fitch and S&P, and 1, 2, and 3 for Moody’s, will be taken into account; for  example, in the case of Fitch, a rating decline either from BBB to BBB- or BB+ to BB will  constitute a decrease of one gradation.  “Recipient” means (a) the Administrative Agent, (b) any Lender and (c) the Letter of  Credit Issuer, as applicable.  “Redeemable Preferred Securities” of any Person means any preferred stock or similar  Capital Securities (including, without limitation, limited liability company membership interests  and limited partnership interests) issued by such Person which is at any time prior to the  Termination Date either (i) mandatorily redeemable (by sinking fund or similar payments or  otherwise) or (ii) redeemable at the option of the holder thereof.  “Refinancing Conditions” means all of the following conditions with respect to Debt  being refinanced:  (i) the new Debt is in an aggregate principal amount that does not exceed the  greater of the fair market value of the asset being refinanced and the principal amount of the  Debt being refinanced, and has a final maturity date no sooner than, and a weighted average life  no less than, the Debt being extended, renewed or refinanced thereby, (ii) the new Debt is  subordinated to the Obligations at least to the same extent as the Debt being extended, renewed  





 






  28  WBD (US) 57324867v5  or refinanced thereby, (iii) the terms of such new Debt, taken as a whole, are no less  advantageous to the Loan Parties than the terms of the existing Debt being refinanced, (iv) such  new Debt may be secured only by, and recourse for payment shall be contractually limited to, the  Liens securing the Debt being refinanced or the assets being refinanced thereby, and no  additional Lien shall be granted to secure the new Debt, and (v) immediately after giving effect  to such new Debt, no Default shall exist.  “Register” has the meaning set forth in Section 9.07(c).  “Reimbursement Obligations” means the reimbursement or repayment obligations of the  Borrower to the Letter of Credit Issuer pursuant to Section 11.05 with respect to Letters of  Credit.  “Rejecting Lender” has the meaning set forth in Section 2.15(d).  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the  partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and  representatives of such Person and of such Person’s Affiliates.  “Relevant Governmental Body” shall mean 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 a reportable event described in Section 4043 of ERISA and  regulations thereunder with respect to a Plan, other than any such event for which the reporting  obligation has been waived pursuant to regulations of the PBGC.  “Required Environmental Notices” means all notices, reports, plans, forms or other  filings which pursuant to Environmental Laws, Environmental Authorizations or at the request or  direction of a Governmental Authority either must be submitted to a Governmental Authority or  which otherwise must be maintained.  “Required Lenders” means, at any time when there is more than one Lender, not less than  two (2) Lenders having at least 66-2/3% of the aggregate amount of the Revolver Commitments  or, if the Revolver Commitments are no longer in effect, not less than two (2) Lenders holding at  least 66-2/3% of the aggregate outstanding principal amount of the Advances and the Letter of  Credit Obligations; provided, however, that the Revolver Commitments and any outstanding  Advances or Letter of Credit Obligations of any Defaulting Lender shall be excluded for  purposes of making a determination of Required Lenders.  If at any time there is only one  Lender, then Required Lenders means such Lender.    “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Restricted Payment” means (i) any dividend or other distribution on any shares of the  Borrower’s or any Subsidiary’s Capital Securities (except dividends payable solely in shares of  its Capital Securities); or (ii) any payment on account of the purchase, redemption, retirement or  acquisition of (a) any shares of the Borrower’s or any Subsidiary’s Capital Securities (except  shares acquired upon the conversion thereof into other shares of its Capital Securities) or (b) any  





 






  29  WBD (US) 57324867v5  option, warrant or other right to acquire shares of the Borrower’s or any Subsidiary’s Capital  Securities.  “Revolver Advance” means an advance made to the Borrower under this Agreement  pursuant to Section 2.01(a). For the avoidance of doubt, an Adjusted Term SOFR Advance, an  Adjusted Daily Simple SOFR Advance and a Term SOFR Index Rate Advance are Revolver  Advances.  “Revolver Commitment” means, with respect to each Lender, (i) the amount set forth  opposite the name of such Lender on Schedule 2.01, or (ii) as to any Lender which enters into an  Assignment and Assumption (whether as transferor Lender or as assignee thereunder) or joinder  agreement pursuant to Section 2.14, the amount of such Lender’s Revolver Commitment after  giving effect to such Assignment and Assumption or joinder agreement, in each case as such  amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.  The aggregate  principal amount of the Revolver Commitments of all of the Lenders in effect on the Closing  Date is $150,000,000.  “Revolver Notes” means the promissory notes of the Borrower, substantially in the form  of Exhibit B-1 hereto, evidencing the obligation of the Borrower to repay the Revolver  Advances, together with all amendments, consolidations, modifications, renewals, substitutions  and supplements thereto or replacements thereof and “Revolver Note” means any one of such  Revolver Notes.  “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw- Hill Companies, Inc., and any successor thereto.  “Sale/Leaseback Transaction” means, with respect to the Borrower or any Subsidiary,  any arrangement, directly or indirectly, with any Person whereby the Borrower or such  Subsidiary 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.   “Sanctioned Entity” shall mean (i) a country or a government of a country, (ii) an agency  of the government of a country, (iii) an organization directly or indirectly controlled by a country  or its government, or (iv) a person or entity resident in or determined to be resident in a country,  that is subject to a country sanctions program administered and enforced by OFAC described or  referenced at http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from  time to time.  “Second Extended Maturity Date” means November 26, 2026.  “Second Option to Extend” means Borrower’s option, subject to the terms and conditions  of that certain Section hereof entitled Options to Extend, to extend the term of this Agreement  from the First Extended Maturity Date to the Second Extended Maturity Date.  “Senior Notes” means collectively (i) the 2027 Senior Notes, (ii) the 2029 Senior Notes,  (iii) the 2032 Senior Notes, (iv) the 2034 Senior Notes, (v) the 2052 Senior Notes, (vi) any  extensions or renewals or replacements of the foregoing and (vii) any new senior notes issued  





 






30  WBD (US) 57324867v5  pursuant to a Note Purchase Agreement after the Third Amendment Effective Date and permitted  pursuant to Section 5.06(f), in each case, subject to the Refinancing Conditions.  “Simple SOFR Adjustment” means a percentage equal to 0.10% per annum.  “SOFR” means a rate per annum equal to the secured overnight financing rate as  administered by the SOFR Administrator.   “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).  “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New  York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight  financing rate identified as such by the SOFR Administrator from time to time.  “SOFR Advance” means, with respect to any Advance, such Advance that shall bear  interest at a rate based upon Adjusted Term SOFR (other than pursuant to clause (iii) of the  definition of “Base Rate”), Adjusted Daily Simple SOFR or the Term SOFR Index Rate. A  SOFR Advance is an Adjusted Term SOFR Advance if such SOFR Advance has an Interest  Period described in subsection (1) of the definition of “Interest Period”. A SOFR Advance is a  Term SOFR Index Rate Advance if such SOFR Advance has an Interest Period described in  subsection (2) of the definition of “Interest Period”. A SOFR Advance is an Adjusted Daily  Simple SOFR Advance if such SOFR Advance shall bear interest at a rate based upon Adjusted  Daily Simple SOFR.  “SOFR Borrowing” means a Borrowing consisting of SOFR Advances made to the  Borrower, other than pursuant to clause (iii) of the definition of “Base Rate”.  “Stockholders’ Equity” means at any time, the shareholders’ and other interest owners’  equity of the Borrower and its Consolidated Subsidiaries, as set forth or reflected on the most  recent consolidated balance sheet of the Borrower and its Consolidated Subsidiaries prepared in  accordance with GAAP, but excluding any Redeemable Preferred Securities of the Borrower of  any of its respective Consolidated Subsidiaries.  Shareholders’ and other interest owners’ equity  generally would include, but not be limited to, (i) the par or stated value of all outstanding  Capital Securities, (ii) capital surplus, (iii) retained earnings and (iv) various deductions such as  (A) purchases of treasury stock, (B) valuation allowances, (C) receivables due from an employee stock ownership plan, (D) employee stock ownership plan debt guarantees and (E) translation adjustments for foreign currency transactions. “Subsequent Borrowings” has the meaning set forth in Section 2.14(e).  “Subsidiary” of any Person means a corporation, partnership or other entity of which  shares of stock or other ownership interests having ordinary voting power (other than stock or  such other ownership interest having such power only by reason of the happening of a  contingency) to elect a majority of the board of directors or managers or comparable governing  body of such corporation, partnership or other entity are at the time owned, or the management  of which is otherwise controlled, directly or indirectly through one or more intermediaries, or  





 






31  WBD (US) 57324867v5  both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to  “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.  “Swing Advance” means an Advance made by the Swing Line Lender pursuant to  Section 2.01(b).  “Swing Advance Note” means the promissory note of the Borrower, substantially in the  form of Exhibit B-2, evidencing the obligation of the Borrower to repay the Swing Advances,  together with all amendments, consolidations, modifications, renewals, and supplements thereto.  “Swing Line Borrowing” means a Borrowing consisting of Advances made to the  Borrower pursuant to Section 2.01(b).  “Swing Line Lender” means Truist Bank, in its capacity as such, and its successors and  permitted assigns in such capacity.  “Syndicated Borrowing” means a Borrowing consisting of Advances made to the  Borrower pursuant to Section 2.01(a).  “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,  (a) for any calculation with respect to a SOFR Borrowing, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such  day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government  Securities Business Days prior to the first day of such Interest Period, as such rate is  published by the Term SOFR Administrator; provided, that if as of 5:00 p.m. on any  Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the  applicable tenor has not been published by the Term SOFR Administrator and a  Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not  occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as  published by the Term SOFR Administrator on the first preceding U.S. Government  Securities Business Day for which such Term SOFR Reference Rate for such tenor was  published by the Term SOFR Administrator so long as such first preceding U.S.  Government Securities Business Day is not more than three (3) U.S. Government  Securities Business Days prior to such Periodic Term SOFR Determination Day, and  (b) for any calculation with respect to a Base Rate Borrowing on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base  Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities  Business Days prior to such day, as such rate is published by the Term SOFR  Administrator; provided that if as of 5:00 p.m. on any Base Rate Term SOFR  Determination Day the Term SOFR Reference Rate for the applicable tenor has not been  published by the Term SOFR Administrator and a Benchmark Replacement Date with  respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the  





 






32  WBD (US) 57324867v5  Term SOFR Reference Rate for such tenor as published by the Term SOFR  Administrator on the first preceding U.S. Government Securities Business Day for which  such Term SOFR Reference Rate for such tenor was published by the Term SOFR  Administrator so long as such first preceding U.S. Government Securities Business Day  is not more than three (3) U.S. Government Securities Business Days prior to such Base  Rate SOFR Determination Day.   “Term SOFR Adjustment” means a percentage equal to (a) with respect to Term SOFR  with a one-month Interest Period, 0.10% per annum, (b) with respect to Term SOFR with a  three-month Interest Period, 0.15% and (c) with respect to Term SOFR with six-month Interest  Period, 0.25%.  “Term SOFR Administrator” means the CME Group Benchmark Administration Limited  (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the  Administrative Agent in its reasonable discretion).  “Term SOFR Index Rate Advance” means a Revolver Advance having an Interest Period  described in subsection (2) of the definition of “Interest Period” that bears or is to bear interest at  a rate based upon the Term SOFR Reference Rate.  “Term SOFR Index Rate Borrowing” means a Borrowing consisting of Term SOFR  Index Rate Advances.  “Term SOFR Reference Rate” means the rate per annum determined by the  Administrative Agent as the forward-looking term rate based on SOFR.   “Termination Date” means the earlier to occur of (i) the Maturity Date, (ii) the date all of  the Revolver Commitments are terminated pursuant to Section 6.01 following the occurrence of  an Event of Default, or (iii) the date the Borrower terminates all of the Revolver Commitments  pursuant to Section 2.09.  “Third Amendment Effective Date” means October 20, 2022.  “Total Capitalization” means as of any date of determination, the sum of (i)  Stockholders’ Equity, (ii) redeemable common stock (if redeemable common stock is excluded  from Stockholders’ Equity) and (iii) Long Term Debt.  “Total Debt” means all Long Term Debt of the Borrower and its Subsidiaries determined  on a consolidated basis.  “Total Leverage Ratio” means at any time the ratio of (i) Total Debt to (ii) Total  Capitalization.  “Total Unused Revolver Commitments” means at any date, an amount equal to: (A) the  aggregate amount of the Revolver Commitments of all of the Lenders at such time, less (B) the  sum of the aggregate outstanding principal amount of the Revolver Advances and the Swing  Advances of all of the Lenders at such time and the Letter of Credit Obligations outstanding at  such time.  





 






33  WBD (US) 57324867v5  “UGI” means UGI Corporation, a Pennsylvania corporation.  “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 falling within IFPRU 11.6 of the FCA Handbook  (as amended from time to time) promulgated by the United Kingdom Financial Conduct  Authority, which includes certain credit institutions and investment firms, and certain affiliates  of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” shall mean the Benchmark Replacement  excluding the Benchmark Replacement Adjustment.  “Undrawn Amounts” means as of any date the aggregate undrawn amount of all Letters  of Credit then issued and outstanding.  “Unrestricted Assets” shall mean the aggregate amount of Cash and Cash Equivalents  held in accounts on the consolidated balance sheet of Borrower and its Consolidated  Subsidiaries, to the extent that such Cash and Cash Equivalents are free and clear of all Liens.  “Unused Commitment” means at any date, with respect to any Lender, an amount equal  to its Revolver Commitment less the sum of the aggregate outstanding principal amount of the  sum of its Revolver Advances and its Applicable Percentage of Swing Advances and Letter of  Credit Obligations; provided, however, for purposes of Section 2.07(a) only, Swing Advances  shall not be considered outstanding for purposes of determining a Lender’s Unused  Commitment.  “Unused Commitment Fee” has the meaning set forth in Section 2.07(a).  “U.S. Borrower” means any Borrower that is a U.S. Person.  “U.S. Government Securities Business Day” shall mean any day except for (i) a Saturday,  (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “U.S. Person” means any Person that is a “United States Person” as defined in Section  7701(a)(30) of the Code.  “U.S. Tax Compliance Certificate” has the meaning specified in Section 2.12(e)(v).  “Voting Stock” means securities (as such term is defined in Section 2(1) of the Securities  Act of 1933, as amended) of any class or classes, the holders of which are ordinarily, in the  absence of contingencies, entitled to cast votes in any election of any corporate directors (or  Persons performing similar functions).  





 






34  WBD (US) 57324867v5  “Wholly Owned Subsidiary” means any Subsidiary all of the Capital Securities of which  are at the time directly or indirectly owned by the Borrower.  “Withholding Agent” means any Loan Party and the Administrative Agent.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time  to time under the Bail-In Legislation for the applicable EEA Member Country, which write-  down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with  respect to the United Kingdom, any powers of the applicable Resolution Authority under the  Bail-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.  “WVPSC” means the Public Service Commission of West Virginia, or any successor  thereto.  SECTION 1.02. Accounting Terms and Determinations.  Unless otherwise  specified herein, all terms of an accounting character used herein shall be interpreted, all  accounting determinations hereunder shall be made, and all financial statements required to be  delivered hereunder shall be prepared in accordance with GAAP, applied on a basis consistent  (except for changes concurred in by the Borrower’s independent public accountants or otherwise  required by a change in GAAP) with the most recent audited consolidated financial statements of  the Borrower and its Consolidated Subsidiaries delivered to the Administrative Agent for  distribution to the Lenders, unless with respect to any such change concurred in by the  Borrower’s independent public accountants or required by GAAP, in determining compliance  with any of the provisions of this Agreement or any of the other Loan Documents:  (i) the  Borrower shall have objected to determining such compliance on such basis at the time of  delivery of such financial statements, or  (ii) the Required Lenders shall so object in writing  within 30 days after the delivery of such financial statements, in either of which events such  calculations shall be made on a basis consistent with those used in the preparation of the latest  financial statements as to which such objection shall not have been made (which, if objection is  made in respect of the first financial statements delivered under Section 5.01 hereof, shall mean  the financial statements referred to in Section 4.04).  SECTION 1.03. Use of Defined Terms.  All terms defined in this Agreement shall  have the same meanings when used in any of the other Loan Documents, unless otherwise  defined therein or unless the context shall otherwise require.  SECTION 1.04. Terms Generally.  The definitions of terms herein shall apply  equally to the singular and plural forms of the terms defined.  Whenever the context may require,  any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words  “include,” “includes” and “including” shall be deemed to be followed by the phrase “without  limitation.”  The word “will” shall be construed to have the same meaning and effect as the word  “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement,  





 






35  WBD (US) 57324867v5  instrument or other document herein shall be construed as referring to such agreement,  instrument or other document as from time to time amended, supplemented or otherwise  modified (subject to any restrictions on such amendments, supplements or modifications set forth  herein), (b) any reference herein to any Person shall be construed to include such Person’s  successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar  import, shall be construed to refer to this Agreement in its entirety and not to any particular  provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be  construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement,  (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time; (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights; and (g) titles of Articles and Sections in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement. SECTION 1.05. Amendment and Restatement of Existing Credit Agreement.  The  parties to this Agreement agree that, on the Closing Date, the terms and provisions of the  Existing Credit Agreement shall be and hereby are amended, superseded and restated in their  entirety by the terms and provisions of this Agreement.  This Agreement is not intended to and  shall not constitute a novation, payment and reborrowing or termination of the Obligations under  the Existing Credit Agreement and the other Existing Loan Documents as in effect prior to the  Closing Date.  All Advances made and Obligations incurred under the Existing Credit  Agreement that are outstanding on the Closing Date shall continue as Advances and Obligations  under (and shall be governed by the terms of) this Agreement and the other Loan Documents.   Without limiting the foregoing, on the Closing Date: (a) all references in the Existing Loan  Documents to the “Agreement”, “Credit Agreement” and the “Loan Documents” shall be  deemed to refer to this Agreement and the Loan Documents, (b) all obligations constituting  “Obligations” with any Lender or any Affiliate of any Lender that are outstanding on the Closing  Date shall continue as Obligations under this Agreement and the other Loan Documents, and (c)  the Administrative Agent shall make such reallocations, sales, assignments or other relevant  actions in respect of each Lender’s Applicable Percentage under the Existing Credit Agreement  as are necessary in order that each such Lender’s Applicable Percentage and outstanding  Advances hereunder reflects such Lender’s Applicable Percentage on the Closing Date.  SECTION 1.06. Rates. The Administrative Agent does not warrant or accept  responsibility for, and shall not have any liability with respect to (a) the continuation of,  administration of, submission of, calculation of or any other matter related to the Base Rate, the  Term SOFR Reference Rate, Adjusted Term SOFR, Adjusted Daily Simple SOFR, the Term  SOFR Index Rate or Term SOFR, or any component definition thereof or rates referred to in the  definition thereof, or any alternative, successor or replacement rate thereto (including any  Benchmark Replacement), including whether the composition or characteristics of any such  alternative, successor or replacement rate (including any Benchmark Replacement) will be  similar to, or produce the same value or economic equivalence of, or have the same volume or  liquidity as, the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Adjusted  Daily Simple SOFR, the Term SOFR Index Rate or Term SOFR or any other Benchmark prior to  its discontinuance or unavailability, or (b) the effect, implementation or composition of any  Conforming Changes.  The Administrative Agent and its affiliates or other related entities may  engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference  





 






36  WBD (US) 57324867v5  Rate, Term SOFR, Adjusted Term SOFR, Adjusted Daily Simple SOFR, the Term SOFR Index  Rate or any alternative, successor or replacement rate (including any Benchmark Replacement)  or any relevant 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 the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR,  Adjusted Daily Simple SOFR, the Term SOFR Index Rate or any other Benchmark, in each case  pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender  or any other person or entity for damages of any kind, including direct or indirect, special,  punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract  or otherwise and whether at law or in equity), for any error or calculation of any such rate (or  component thereof) provided by any such information source or service.  ARTICLE II  THE CREDIT  SECTION 2.01. Commitments to Make Advances.  (a) Syndicated Revolver Advances.  Each Lender severally agrees, on the terms and conditions set forth herein, to make Revolver Advances to the Borrower from  time to time during the Availability Period; provided that, immediately after each such  Revolver Advance is made, (i) the aggregate outstanding principal amount of Revolver  Advances by such Lender together with such Lender’s Applicable Percentage of the  aggregate outstanding principal amount of all Swing Advances and Letter of Credit  Obligations shall not exceed the amount of the Revolver Commitment of such Lender at  such time and (ii) the aggregate outstanding principal amount of the Revolver Advances,  together with the aggregate outstanding principal amount of all Swing Advances and  Letter of Credit Obligations, will not exceed the aggregate amount of the Revolver  Commitments of all of the Lenders as of such time.  Each Syndicated Borrowing under  this Section 2.01 shall be in an aggregate principal amount of $500,000 or any larger  multiple of $100,000 (except that any such Syndicated Borrowing may be in the  aggregate amount of the Total Unused Revolver Commitments) and shall be made from  the several Lenders ratably in proportion to their respective Revolver Commitments.   Within the foregoing limits, the Borrower may borrow under this Section, repay or, to the  extent permitted by Section 2.10, prepay Revolver Advances and reborrow under this  Section 2.01 at any time during the Availability Period.  (b) Swing Advances. (i) In addition to the foregoing, the Swing Line Lender shall from time to time, upon the request of the Borrower, if the applicable conditions  precedent in Article III have been satisfied, make Swing Advances to the  Borrower in an aggregate principal amount at any time outstanding not exceeding  $10,000,000; provided that, immediately after such Swing Advance is made, the  conditions set forth in Section 2.01(a) shall have been satisfied.  Each Swing  Advance Borrowing under this Section 2.01(b) shall be in an aggregate principal  amount of $100,000 or any larger multiple of $50,000.  No Swing Advance shall  remain outstanding for more than five (5) Domestic Business Days.  Within the  foregoing limits, the Borrower may borrow under this Section 2.01(b), prepay and  





 






37  WBD (US) 57324867v5  reborrow under this Section 2.01(b) at any time during the Availability Period.   Solely for purposes of calculating the Unused Commitment Fee, Swing Advances  shall be considered a utilization of the Revolver Commitment of the Swing Line  Lender or any other Lender hereunder.  All Swing Advances shall be made as  Base Rate Advances.  At any time, upon the request of the Swing Line Lender,  each Lender other than the Swing Line Lender shall, on the third Domestic  Business Day after such request is made, purchase a participating interest in  Swing Advances in an amount equal to its ratable share (based upon its respective  Revolver Commitment) of such Swing Advances.  On such third Domestic  Business Day, each Lender will immediately transfer to the Swing Line Lender, in  immediately available funds, the amount of its participation.  Whenever, at any  time after the Swing Line Lender has received from any such Lender its  participating interest in a Swing Advance, the Administrative Agent receives any  payment on account thereof, the Administrative Agent will distribute to such  Lender its participating interest in such amount (appropriately adjusted, in the  case of interest payments, to reflect the period of time during which such Lender’s  participating interest was outstanding and funded); provided, however, that in the  event that such payment received by the Administrative Agent is required to be  returned, such Lender will return to the Administrative Agent any portion thereof  previously distributed by the Administrative Agent to it.  Each Lender’s  obligation to purchase such participating interests shall be absolute and  unconditional and shall not be affected by any circumstance, including, without  limitation: (i) any set-off, counterclaim, recoupment, defense or other right which  such Lender or any other Person may have against the Swing Line Lender or any  other Person for any reason whatsoever; (ii) the occurrence or continuance of a  Default or the termination of the Revolver Commitments; (iii) any adverse change  in the condition (financial, business or otherwise) of any Loan Party or any other  Person; (iv) any breach of this Agreement by any Loan Party or any other Lender;  or (v) any other circumstance, happening or event whatsoever, whether or not  similar to any of the foregoing.  (ii) Notwithstanding anything to the contrary contained herein, the Swing Line Lender shall not at any time be obligated to make any Swing Advance  hereunder if any Lender is at such time a Defaulting Lender, unless the applicable  Swing Line Lender has entered into arrangements satisfactory to the Swing Line  Lender, in its sole discretion, with the Borrower or such Defaulting Lender to  eliminate the Swing Line Lender’s Fronting Exposure (after giving effect to the  reallocation set forth in Section 9.20(a)(v)) with respect to such Defaulting Lender  (which arrangements are hereby consented to by the Lenders).  Without limiting  the generality of the foregoing, at any point in time in which there is a Defaulting  Lender, the Swing Line Lender may require the Borrower to Cash Collateralize  the outstanding Swing Advances in an amount sufficient to cover all Fronting  Exposure (after giving effect to the reallocation set forth in Section 9.20(a)(v) and  any Cash Collateral provided by such Defaulting Lender), if any.  Upon such  request by the Swing Line Lender, the Borrower shall promptly, within one (1)  Domestic Business Day, Cash Collateralize the outstanding Swing Advances in  an amount equal to such Fronting Exposure on terms reasonably satisfactory to  





 






38  WBD (US) 57324867v5  the Swing Line Lender; provided, that the Borrower shall be permitted to Cash  Collateralize such Fronting Exposure with the proceeds of Swing Advances or  Revolver Advances to the extent that Borrower is entitled to request and receive  any such Advance in accordance with the other provisions of this Agreement.  SECTION 2.02. Method of Borrowing Advances.  (a) The Borrower shall give the Administrative Agent notice in the form attached hereto as Exhibit A (a “Notice of Borrowing”) prior to (1) in the case of any  Swing Line Borrowing and or any Base Rate Borrowing of Revolver Advances,  11:00A.M. (Eastern time) on the Domestic Business Day proposed for such Base Rate  Borrowing, (2) in the case of any Term SOFR Index Rate Borrowing, 11:00 A.M.  (Eastern time) at least one (1) Domestic Business Day before each Term SOFR Index  Rate Borrowing and (3) 11:00 A.M. (Eastern time) at least three (3) U.S. Government  Securities Business Days before each Adjusted Term SOFR Borrowing and each  Adjusted Daily Simple SOFR Borrowing, specifying:  (i) the proposed date of such Borrowing, which shall be a Domestic Business Day in the case of a Base Rate Borrowing and a U.S. Government  Securities Business Day in the case of an Adjusted Term SOFR Borrowing, Term  SOFR Index Rate Borrowing or Adjusted Daily Simple SOFR Borrowing,  (ii) the aggregate amount of such Borrowing, (iii) whether the Revolver Advances comprising such Borrowing are to be Base Rate Advances, Adjusted Term SOFR Advances, Adjusted Daily Simple  SOFR Advances or Term SOFR Index Rate Advances, or stating that such  Borrowing is to be a Swing Line Borrowing and  (iv) in the case of an Adjusted Term SOFR Borrowing, the duration of the Interest Period applicable thereto, subject to the provisions of the definition of  Interest Period.  (b) Upon receipt of a Notice of Borrowing (other than a request for a Swing Line Borrowing), the Administrative Agent shall promptly notify each Lender of the  contents thereof and (unless such Borrowing is a Swing Line Borrowing) of such  Lender’s ratable share of such Borrowing and such Notice of Borrowing, once received  by the Administrative Agent, shall not thereafter be revocable by the Borrower.  Upon  receipt of a Notice of Borrowing requesting a Swing Line Borrowing, the Administrative  Agent shall promptly notify the Swing Line Lender of the contents thereof.  (c) Not later than (i) 11:00 A.M. (Eastern time) on the date of each Term SOFR Index Rate Borrowing, Adjusted Daily Simple SOFR Borrowing or Adjusted  Term SOFR Borrowing, and (ii) 2:00 P.M. on the date of each Base Rate Borrowing,  each Lender shall make available its ratable share of such Borrowing (unless such  Borrowing is a Swing Line Borrowing), in Federal or other funds immediately available  in Atlanta, Georgia, to the Administrative Agent at its address referred to in or specified  pursuant to Section 9.01.  Unless the Administrative Agent determines that any  





 






  39  WBD (US) 57324867v5  applicable condition specified in Article III has not been satisfied: (1) in the case of a  Syndicated Borrowing, the Administrative Agent will disburse the funds so received from  the Lenders to the Borrower; and (2) in the case of a Swing Line Borrowing the Swing  Line Lender will make available to the Borrower the amount of any such Swing Line  Borrowing.  (d) Notwithstanding anything to the contrary contained in this Agreement, no  Adjusted Term SOFR Borrowing may be made if there shall have occurred a Default,  which Default shall not have been cured or waived.   (e) In the event that a Notice of Borrowing fails to specify whether the  Revolver Advances comprising such Borrowing are to be Base Rate Advances, Adjusted  Term SOFR Advances, Adjusted Daily Simple SOFR Advances or Term SOFR Index  Rate Advances, such Revolver Advances shall be made as Base Rate Advances.  If the  Borrower is otherwise entitled under this Agreement to repay any Revolver Advances  maturing at the end of an Interest Period applicable thereto with the proceeds of a new  Borrowing, and the Borrower fails to repay such Revolver Advances using its own  moneys and fails to give a Notice of Borrowing in connection with such new Borrowing,  a new Borrowing shall be deemed to be made on the date such Revolver Advances  mature in an amount equal to the principal amount of the Revolver Advances so  maturing, and the Revolver Advances comprising such new Borrowing shall be Base  Rate Advances.  (f) Notwithstanding anything to the contrary contained herein, there shall not  be more than five (5) Interest Periods outstanding at any given time; provided that for  purposes of this Section 2.02(f), all Term SOFR Index Rate Advances shall constitute  one Interest Period.  SECTION 2.03. Continuation and Conversion Elections.  By delivering a notice (a  “Notice of Continuation or Conversion”), which shall be substantially in the form of Exhibit C,  to the Administrative Agent on or before 12:00 P.M., Eastern time, on a Domestic Business Day  (or a U.S. Government Securities Business Day, in the case of Adjusted Term SOFR Advances  or Adjusted Daily Simple SOFR Advances outstanding), the Borrower may from time to time  irrevocably elect, by notice at least one (1) Domestic Business Day prior in the case of a  continuation of or conversion to Base Rate Advances or Term SOFR Index Rate Advances or  three (3) U.S. Government Securities Business Days prior in the case of a continuation of or  conversion to Adjusted Term SOFR Advances or Adjusted Daily Simple SOFR Advances, that  all, or any portion in an aggregate principal amount of $500,000 or any larger integral multiple of  $100,000 be, (i) in the case of Base Rate Advances, converted into SOFR Advances or (ii) in the  case of SOFR Advances, converted into Base Rate Advances or continued as SOFR Advances;  provided, however, that (x) each such conversion or continuation shall be prorated among the  applicable outstanding Revolver Advances of all Lenders that have made such Revolver  Advances, and (y) no portion of the outstanding principal amount of any Revolver Advances  may be continued as, or be converted into, any Adjusted Term SOFR Advance when any Default  has occurred and is continuing.  In the absence of delivery of a Notice of Continuation or  Conversion with respect to any Adjusted Term SOFR Advance at least three (3) U.S.  Government Securities Business Days before the last day of the then current Interest Period with  





 






  40  WBD (US) 57324867v5  respect thereto, such Adjusted Term SOFR Advance shall, on such last day, automatically  convert to a Base Rate Advance.  SECTION 2.04. Notes.  The Revolver Advances of each Lender (other than the  Swing Advances) shall be evidenced by a single Revolver Note payable to such Lender for the  account of its Lending Office in an amount equal to the original principal amount of such  Lender’s Revolver Commitment.  The Swing Advances shall be evidenced by a single Swing  Advance Note payable to the Swing Line Lender in the original principal amount of  $10,000,000.  Upon receipt of each Lender’s Note pursuant to Section 3.01, the Administrative  Agent shall deliver such Note to such Lender.  Each Lender shall record, and prior to any  transfer of its Note shall endorse on the schedule forming a part thereof appropriate notations to  evidence, the date, amount and maturity of, and effective interest rate for, each Advance made by  it, the date and amount of each payment of principal made by the Borrower with respect thereto  and such schedule shall constitute rebuttable presumptive evidence of the principal amount  owing and unpaid on such Lender’s Note; provided that the failure of any Lender to make, or any  error in making, any such recordation or endorsement shall not affect the obligation of the  Borrower hereunder or under the Note or the ability of any Lender to assign its Notes.  Each  Lender is hereby irrevocably authorized by the Borrower so to endorse its Notes and to attach to  and make a part of any Note a continuation of any such schedule as and when required.  SECTION 2.05. Maturity of Advances.  Each Revolver Advance included in any  Borrowing shall mature, and the principal amount thereof, together with all accrued unpaid  interest thereon, shall be due and payable on the Termination Date.  SECTION 2.06. Interest Rates.  (a) Each Base Rate Advance shall bear interest on the outstanding principal  amount thereof, for each day from the date such Advance is made until it becomes due, at  a rate per annum equal to the Base Rate for such day plus the Applicable Margin (except  to the extent that the Default Rate applies pursuant to the other provisions of this  Agreement).  Such interest shall be payable on each Interest Payment Date while such  Base Rate Advance is outstanding and on the date such Base Rate Advance is converted  to a SOFR Advance or repaid.  Any overdue principal of and, to the extent permitted by  applicable Law, overdue interest on any Base Rate Advance shall bear interest, payable  on demand, for each day until paid in full at a rate per annum equal to the Default Rate.   (b) (i) Each Adjusted Term SOFR Advance and Term SOFR Index Rate  Advance shall bear interest on the outstanding principal amount thereof, for each day  such principal is outstanding during the Interest Period applicable thereto, at a rate per  annum equal to the sum of: (1) the Applicable Margin, plus (2) Adjusted Term SOFR for  such Interest Period or the Term SOFR Index Rate, as applicable (except to the extent  that the Default Rate applies pursuant to the other provisions of this Agreement).  Such  interest shall be payable for each Interest Period on the last day thereof; provided that  interest on Term SOFR Index Rate Advances shall be payable on each Interest Payment  Date while such Term SOFR Index Rate Advance is outstanding and the date such Term  SOFR Index Rate Advance is converted to an Adjusted Term SOFR Advance or repaid.   Any overdue principal of and, to the extent permitted by applicable Law, overdue interest  on any Adjusted Term SOFR Advance or Term SOFR Index Rate Advance shall bear  





 






41  WBD (US) 57324867v5  interest, payable on demand, for each day until paid in full at a rate per annum equal to  the Default Rate.  (ii) Each Adjusted Daily Simple SOFR Advance shall bear interest on the outstanding principal amount thereof, for each day such principal is  outstanding, at a rate per annum equal to the sum of: (1) the Applicable Margin,  plus (2) Adjusted Daily Simple SOFR (except to the extent that the Default Rate  applies pursuant to the other provisions of this Agreement).  Such interest shall be  payable on each Interest Payment Date.  Any overdue principal of and, to the  extent permitted by applicable Law, overdue interest on any Adjusted Daily  Simple SOFR Advance shall bear interest, payable on demand, for each day until  paid in full at a rate per annum equal to the Default Rate.  (c) The Administrative Agent shall determine each interest rate applicable to the Advances hereunder in accordance with the terms of this Agreement.  The  Administrative Agent shall give prompt notice to the Borrower and the Lenders by  telecopy of each rate of interest so determined, and its determination thereof shall be  conclusive in the absence of manifest error.   (d) After the occurrence and during the continuance of an Event of Default (other than an Event of Default under Section 6.01(g) or 6.01(h)), the principal amount of  the Advances (and, to the extent permitted by applicable Law, all accrued interest  thereon) may, at the election of the Required Lenders, bear interest at the Default Rate;  provided, however, that automatically whether or not the Required Lenders elect to do so,  (i) any overdue principal of and, to the extent permitted by law, overdue interest on the Advances shall bear interest payable on demand, for each day until paid at a rate per annum equal to the Default Rate, and (ii) after the continuance and during the continuance of an Event of Default described in Section 6.01(g) or 6.01(h), the principal amount of the Advances (and, to the extent permitted by applicable Law, all accrued interest thereon) shall bear interest payable on demand for each day until paid at a rate per annum equal to the Default Rate. SECTION 2.07. Fees.  (a) The Borrower shall pay to the Administrative Agent for the ratable account of each Lender an unused commitment fee (the “Unused Commitment Fee”)  equal to the product of:  (i) the aggregate of the daily average amounts of such Lender’s  Unused Commitment, times (ii) a per annum percentage equal to the Applicable Margin.   Such unused commitment fee shall accrue from and including the Closing Date to and  including the Termination Date.  Unused commitment fees shall be payable quarterly in  arrears on each Quarterly Payment Date and on the Termination Date; provided that  should the Revolver Commitments be terminated at any time prior to the Termination  Date for any reason, the entire accrued and unpaid fee shall be paid on the Termination  Date.  (b) The Borrower shall pay to the Administrative Agent for the ratable account of each Lender, with respect to each Letter of Credit, a per annum letter of credit  fee (the “Letter of Credit Fee”) equal to the product of:  (i) the daily average of the  





 






42  WBD (US) 57324867v5  Undrawn Amounts during the applicable Fiscal Quarter, times (ii) a per annum  percentage equal to the Applicable Margin for SOFR Advances.  Such Letter of Credit  Fees shall be payable in arrears for each Letter of Credit on each Quarterly Payment Date  during the term of each respective Letter of Credit and on the termination thereof  (whether at its stated expiry date or earlier).    (c) The Borrower shall pay to the Administrative Agent for the account of the Letter of Credit Issuer a facing fee (the “Facing Fee”) with respect to each Letter of  Credit equal to the product of:  (i) the face amount of such letter of credit, times (ii) one- eighth (1/8th) of one percent (0.125%).  Such Facing Fee shall be due and payable on  such date as may be agreed upon by the Letter of Credit Issuer and the Borrower.  The  Borrower shall pay to the Letter of Credit Issuer, for its own account, transfer fees,  drawing fees, modification fees, extension fees and such other fees and charges as may be  provided for in any Letter of Credit Application Agreement or otherwise agreed in  writing by the Borrower and the Letter of Credit Issuer.  No Lender shall be entitled to  any portion of the Facing Fees or any other fees payable by the Borrower to the Letter of  Credit Issuer pursuant to this Section 2.07(c).  (d) The Borrower shall pay to the Administrative Agent, for the account and sole benefit of the Administrative Agent, such fees and other amounts at such times as set  forth in the Administrative Agent’s Letter Agreement.  SECTION 2.08. Optional Termination or Reduction of Commitments.  The  Borrower may, upon at least three (3) Domestic Business Days’ irrevocable notice to the  Administrative Agent, terminate at any time, or proportionately reduce from time to time by an  aggregate amount of at least $5,000,000 or any larger multiple of $1,000,000, the Revolver  Commitments; provided, however:  (1) each termination or reduction, as the case may be, shall  be permanent and irrevocable; (2) no such termination or reduction shall be in an amount greater  than the Total Unused Revolver Commitments on the date of such termination or reduction; and  (3) no such reduction pursuant to this Section 2.08 shall result in the aggregate Revolver Commitments of all of the Lenders being reduced to an amount less than $50,000,000, unless the Revolver Commitments are terminated in their entirety, in which case all accrued fees (as provided under Section 2.07) shall be payable on the effective date of such termination.  Except as provided in Section 9.20(d)(ii), each reduction shall be made ratably among the Lenders in accordance with their respective Revolver Commitments. SECTION 2.09. Termination of Commitments.  The Revolver Commitments shall  terminate on the Termination Date and any Advances then outstanding (together with accrued  interest thereon) shall be due and payable on such date.  SECTION 2.10. Optional Prepayments.  (a) The Borrower may, upon notice to the Administrative Agent given no later than 11:00 A.M. on any Domestic Business Day, prepay any Swing Advances on such  Domestic Business Day and may, upon at least one (1) Domestic Business Day’s notice  to the Administrative Agent, prepay any Base Rate Borrowing of Revolver Advances or  any Term SOFR Index Rate Borrowing, in whole at any time, or from time to time in  part, in amounts aggregating at least $100,000 or any larger integral multiple of $100,000  





 






43  WBD (US) 57324867v5  (or any lesser amount equal to the outstanding balance of such Advance), by paying the  principal amount to be prepaid together with accrued interest thereon to the date of  prepayment, but otherwise shall be without premium or penalty.  Each such optional  prepayment shall be applied first to any Swing Advances outstanding and then to prepay  ratably the Base Rate Advances and Term SOFR Index Rate Advances of the several  Lenders included in such Base Rate Borrowing or Term SOFR Index Rate Borrowing, as  the case may be.  (b) Subject to any payments required pursuant to the terms of Article VIII for an Adjusted Term SOFR Borrowing, the Borrower may, upon at least three (3) Domestic  Business Days’ prior written notice in the case of an Adjusted Term SOFR Borrowing or  an Adjusted Daily Simple SOFR Borrowing, prepay in minimum amounts of $500,000  with additional increments of $100,000 (or any lesser amount equal to the outstanding  balance of such Advances) all or any portion of the principal amount of any Adjusted  Term SOFR Borrowing or Adjusted Daily Simple SOFR Borrowing prior to the maturity  thereof, by paying the principal amount to be prepaid together with accrued interest  thereon to the date of prepayment and such payments required pursuant to the terms of  Article VIII, but otherwise such prepayment shall be without premium or penalty if, in  the case of an Adjusted Term SOFR Borrowing, made at the end of the applicable  Interest Period.  Each such optional prepayment shall be applied to prepay ratably the  Adjusted Term SOFR Advances or Adjusted Daily Simple SOFR Advances, as  applicable, of the several Lenders included in such Adjusted Term SOFR Borrowing or  Adjusted Daily Simple SOFR Borrowing, as applicable.  (c) Upon receipt of a notice of prepayment pursuant to this Section 2.10, the Administrative Agent shall promptly notify each Lender of the contents thereof and of  such Lender’s ratable share of such prepayment and such notice, once received by the  Administrative Agent, shall not thereafter be revocable by the Borrower.   (d) Any amount paid or prepaid before the Termination Date may, subject to the terms and conditions of this Agreement, be borrowed, repaid and borrowed again.  SECTION 2.11. Mandatory Prepayments.  (a) On each date on which the Revolver Commitments are reduced or terminated pursuant to Section 2.08 or Section 2.09, the Borrower shall repay or prepay  such principal amount of the outstanding Revolver Advances, if any (together with  interest accrued thereon and any amount due under Section 8.05), as may be necessary so  that after such payment the aggregate unpaid principal amount of the Revolver Advances  does not exceed the aggregate amount of the Revolver Commitments as then reduced.    (b) In the event that the aggregate principal amount of all Revolver Advances at any one time outstanding shall at any time exceed the aggregate amount of the  Revolver Commitments of all of the Lenders at such time, the Borrower shall  immediately repay so much of the Revolver Advances as is necessary in order that the  aggregate principal amount of the Revolver Advances thereafter outstanding, shall not  exceed the aggregate amount of the Revolver Commitments of all of the Lenders at such  time.    





 






44  WBD (US) 57324867v5  (c) In the event that the aggregate principal amount of all Revolver Advances, together with the aggregate principal amount of the Swing Advances and the amount of  Letter of Credit Obligations at any one time outstanding, shall at any time exceed the  aggregate amount of the Revolver Commitments of all of the Lenders at such time, the  Borrower shall immediately repay so much of the Revolver Advances and Swing  Advances and Cash Collateralize the Letter of Credit Obligations to the extent necessary  in order that the aggregate principal amount of the Revolver Advances thereafter  outstanding, together with the aggregate principal amount of the Swing Advances, and  the amount of Letter of Credit Obligations shall not exceed the aggregate amount of the  Revolver Commitments of all of the Lenders at such time.  (d) Within five (5) Domestic Business Days after the receipt of insurance proceeds (or the expiration of the one hundred eighty (180) day period referred to in  Section 5.19, if such proceeds are permitted to be reinvested under such Section 5.19) by  a Loan Party or a Subsidiary of a Loan Party from a loss greater than $5,000,000 which  are not reinvested to replace or restore the affected property as described in Section 5.19,  the Borrower shall make a mandatory prepayment of principal on the Advances, together  with accrued interest on such principal amount, equal to 100% of the net after tax  proceeds thereof.    (e) Within five (5) Domestic Business Days of (i) the issuance by any Loan Party or any Subsidiary of a Loan Party of any debt security, equity security, or Hybrid  Security for cash proceeds or of the incurrence of any Debt (other than Debt permitted  under clauses (a) through (f) inclusive of Section 5.06) by such Loan Party or such  Subsidiary of a Loan Party, except for such issuance to a Loan Party or Subsidiary of a  Loan Party, or (ii) the receipt by any Loan Party or Subsidiary of a Loan Party of any  cash proceeds with respect to any contribution to the capital of such Loan Party or  Subsidiary (other than any such contributions by Parent or any other entity that directly or  indirectly owns all or a portion of the equity of the Borrower), the Borrower shall make a  mandatory prepayment of principal on the Advances equal to 100% of the Net Cash  Proceeds of any such debt security, Hybrid Security or Debt, and 50% of the Net Cash  Proceeds of any equity security or such capital contributions, in each case together with  accrued interest on such principal amount.    (f) Each prepayment pursuant to the provisions of this Section 2.11 shall be applied first, to the outstanding principal balance of the Swing Advances (if any) until the  same has been repaid in full; second, to the outstanding principal balance of the Revolver  Advances until the same has been paid in full, ratably to the Lenders in accordance with  their Applicable Percentages; and third, if the Borrower is required to provide Cash  Collateral for any Letter of Credit Obligations pursuant to the Loan Documents, to  provide such until the Letter of Credit Obligations have been fully Cash Collateralized to  the extent required by the Loan Documents.  Within the foregoing parameters,  prepayments shall be applied first to Base Rate Borrowings, then to Term SOFR Index  Rate Borrowings, then to Adjusted Daily Simple SOFR Borrowings and finally to  Adjusted Term SOFR Borrowings.  All prepayments under this Section 2.11 shall be  subject to Article VIII and be accompanied by interest accrued on the principal amount  prepaid through the date of prepayment, but otherwise shall be without premium or  penalty.  Prior to the occurrence of a Default, any portion of any prepayment pursuant to  





 






45  WBD (US) 57324867v5  this Section 2.11 that is to be applied to Adjusted Term SOFR Advances shall be  deposited into an interest-bearing Cash Collateral account with the Administrative Agent  and from which the Borrower shall have no right to withdraw any moneys (including any  interest or earnings thereon), and shall be automatically applied to such Adjusted Term  SOFR Advances upon the expiration of the Interest Periods applicable thereto.  Any  interest earned on such Cash Collateral account and remaining after such prepayment  shall be solely for the benefit of the Borrower and shall be promptly disbursed to  Borrower on or after the application of such prepayment.  For so long as any funds are  held in such collateral account, interest at the applicable interest rate shall continue to  accrue on such Adjusted Term SOFR Advances.   SECTION 2.12. General Provisions as to Payments.  (a) The Borrower shall make each payment of principal of, and interest on, the Advances and of fees hereunder without any set off, counterclaim or any deduction  whatsoever, not later than 11:00 A.M. (Eastern time) on the date when due, in Federal or  other funds immediately available in Atlanta, Georgia, to the Administrative Agent at its  address referred to in Section 9.01.  The Administrative Agent will promptly distribute to  the Swing Line Lender each such payment received on account of the Swing Advances  and to each Lender its ratable share of each such payment received by the Administrative  Agent for the account of the Lenders.    (b) Whenever any payment of principal of, or interest on, the Base Rate Advances or of fees shall be due on a day which is not a Domestic Business Day, the date  for payment thereof shall be extended to the next succeeding Domestic Business Day.   Whenever any payment of principal of or interest on, the SOFR Advances shall be due on  a day which is not a U.S. Government Securities Business Day, the date for payment  thereof shall be extended to the next succeeding U.S. Government Securities Business  Day unless such U.S. Government Securities Business Day falls in another calendar  month, in which case the date for payment thereof shall be the next preceding U.S.  Government Securities Business Day.  If the date for any payment of principal is  extended by operation of law or otherwise, interest thereon shall be payable for such  extended time.  (c) 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 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 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 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 (i) in the case of a payment to be made by such Lender, the  greater of the Federal Funds Rate and a rate determined by the Administrative Agent in  accordance with banking industry rules on interbank compensation and (ii) in the case of  





 






46  WBD (US) 57324867v5  a payment to be made by the Borrower, the interest rate applicable to Base Rate  Advances.  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 Advance 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.  (d) Payments by Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date  on which any payment is due to the Administrative Agent for the account of the Lenders  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 the amount due.  In  such event, if the Borrower has not in fact made such payment, then each of the Lenders  severally agrees to repay to the Administrative Agent forthwith on demand the amount so  distributed to such Lender, with interest thereon, for each day from and including the date  such amount is distributed to it to but excluding the date of payment to the  Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by  the Administrative Agent in accordance with banking industry rules on interbank  compensation.  A notice of the Administrative Agent to any Lender or the Borrower with respect  to any amount owing under subsections (c) and (d) of this Section 2.12 shall be  conclusive, absent manifest error.  (e) Taxes. (i) Payments Free of Taxes.  Any and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any  other Loan Document shall be made free and clear of and without reduction or  withholding for any Indemnified Taxes, provided that if any Withholding Agent  shall be required by applicable Law (as determined in the good faith discretion of  the applicable Withholding Agent) to deduct or withhold any Indemnified Taxes  (including any Other Taxes) from such payments, then (A) the sum payable by the  applicable Loan Party shall be increased as necessary so that after making all  required deductions and withholdings (including deductions and withholdings  applicable to additional sums payable under this Section) the applicable  Recipient, as the case may be, receives an amount equal to the sum it would have  received had no such deductions or withholdings been made, (B) such  Withholding Agent shall make such deductions and (C) such Withholding Agent  shall timely pay the full amount deducted to the relevant Governmental Authority  in accordance with applicable Law.  For purposes of this Section 2.12(e), the term  “Lender” includes the Letter of Credit Issuer and the term “applicable law”  includes FATCA.  





 






47  WBD (US) 57324867v5  (ii) Payment of Other Taxes by the Loan Parties.  Without limiting the provisions of paragraph (i) 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.  (iii) Indemnification by the Loan Parties and Lenders.  (A) The Loan Parties shall jointly and severally  indemnify each Recipient, within 10 days after  demand therefor, for the full amount of any Indemnified Taxes (including  Indemnified Taxes imposed or asserted on or attributable to amounts payable  under this Section) payable or paid by such Recipient, or required to be withheld  or deducted from a payment to such Recipient and any reasonable expenses  arising therefrom or with respect thereto, whether or not such Indemnified Taxes  were correctly or legally imposed or asserted by the relevant Governmental  Authority.  A certificate as to the amount of such payment or liability delivered to  the Borrower by a Lender (with a copy to the Administrative Agent), by the Letter  of Credit 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 Letter of  Credit Issuer, shall be conclusive absent manifest error.  (B) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to  such Lender (but only to the extent that any Loan Party has not already  indemnified the Administrative Agent for such Indemnified Taxes and without  limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to  such Lender’s failure to comply with the provisions of Section 9.07 relating to the  maintenance of a Participant Register and (iii) any Excluded Taxes attributable to  such Lender, in each case, that are payable or paid by the Administrative Agent in  connection with any Loan Document, and any reasonable expenses arising  therefrom or with respect thereto, whether or not such Taxes were correctly or  legally imposed or asserted by the relevant Governmental Authority.  A certificate  as to the amount of such payment or liability delivered to any Lender by the  Administrative Agent shall be conclusive absent manifest error.  Each Lender  hereby authorizes the Administrative Agent to set off and apply any and all  amounts at any time owing to such Lender under any Loan Document or  otherwise payable by the Administrative Agent to the Lender from any other  source against any amount due to the Administrative Agent under this paragraph  (iii)(B).  (iv) Evidence of Payments.  As soon as practicable after any payment of Indemnified Taxes by any Loan Party to a Governmental Authority, such Loan  Party shall deliver to the Administrative Agent the original or a certified copy of a  receipt issued by such Governmental Authority evidencing such payment, a copy  of the return reporting such payment or other evidence of such payment  reasonably satisfactory to the Administrative Agent.  (v) Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax, with respect to payments hereunder or  under any other Loan Document shall deliver to the Borrower (with a copy to the  





 






48  WBD (US) 57324867v5  Administrative Agent), at the time or times prescribed by applicable Law or  reasonably requested by the Borrower or the Administrative Agent, such properly  completed and executed documentation prescribed by applicable Law or  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 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  2.12(e)(v)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s  reasonable judgment such completion, execution or submission would subject  such Lender to any material unreimbursed cost or expense or would materially  prejudice the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,  (1) 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 copies of IRS Form W-9 certifying that  such Lender is exempt from U.S. federal backup withholding tax;  (2) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to 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:  a. in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a  party (x) with respect to payments of interest under any Loan  Document, executed copies of IRS Form W-8BEN 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 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;  b. executed copies of IRS Form W-8ECI; 





 






49  WBD (US) 57324867v5  c. in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section  881(c) of the Code, (x) a certificate substantially in the form of  Exhibit D-1 to the effect that such Foreign Lender is not a “bank”  within the meaning of Section 881(c)(3)(A) of the Code, a “10  percent shareholder” of the Borrower within the meaning of  Section 881(c)(3)(B) of the Code, or a “controlled foreign  corporation” described in Section 881(c)(3)(C) of the Code (a  “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS  Form W-8BEN; or  d. to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by  IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance  Certificate substantially in the form of Exhibit D-2 or Exhibit D-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 D-4 on behalf of each such  direct and indirect partner;  (3) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to 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 copies of any  other form prescribed by applicable law as a basis for claiming exemption  from or a reduction in U.S. federal withholding Tax, duly completed,  together with such supplementary documentation as may be prescribed by  applicable law to permit the Borrower or the Administrative Agent to  determine the withholding or deduction required to be made; and  (4) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if  such Lender were to fail to comply with the applicable reporting  requirements of FATCA (including those contained in Section 1471(b) or  1472(b) of the Code, as applicable), such Lender shall deliver to 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 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  





 






50  WBD (US) 57324867v5  obligations under FATCA or to determine the amount to deduct and  withhold from such payment.  Solely for purposes of this clause (D),  “FATCA” shall include any amendments made to FATCA after the date  of this Agreement.  Each Lender agrees that if any form or certification it previously delivered expires  or becomes obsolete or inaccurate in any respect, it shall update such form or  certification or promptly notify the Borrower and the Administrative Agent in  writing of its legal inability to do so.  (vi) Treatment of Certain Refunds.  If a Recipient determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to  which it has been indemnified by the Loan Parties or with respect to which any  Loan Party has paid additional amounts pursuant to this Section, it shall pay to the  applicable Loan Party an amount equal to such refund (but only to the extent of  indemnity payments made, or additional amounts paid, by such Loan Party under  this Section with respect to the Taxes or Other Taxes giving rise to such refund),  net of all out-of-pocket expenses of the Administrative Agent, the Letter of Credit  Issuer or such Lender, as the case may be, and without interest (other than any  interest paid by the relevant Governmental Authority with respect to such refund),  provided that the applicable Loan Party, upon the request of the Administrative  Agent, the Letter of Credit Issuer or such Lender, agrees to repay the amount paid  over to such Loan Party (plus any penalties, interest or other charges imposed by  the relevant Governmental Authority) to the Administrative Agent, the Letter of  Credit Issuer or such Lender in the event the Administrative Agent, the Letter of  Credit Issuer or such Lender is required to repay such refund to such  Governmental Authority.  Notwithstanding anything to the contrary in this  paragraph (vi), in no event will the indemnified party be required to pay any  amount to an indemnifying party pursuant to this paragraph (vi) the payment of  which would place the indemnified party in a less favorable net after-Tax position  than the indemnified party would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or  otherwise imposed and the indemnification payments or additional amounts with  respect to such Tax had never been paid.  This paragraph shall not be construed to  require the Administrative Agent, the Letter of Credit Issuer or any Lender to  make available its tax returns (or any other information relating to its taxes that it  deems confidential) to such Loan Party or any other Person.  (vii) Each party’s obligations under this Section 2.12(e) shall survive the resignation or replacement of the Administrative Agent or any assignment of  rights by, or the replacement of, a Lender, the termination of the Commitments  and the repayment, satisfaction or discharge of all obligations under any Loan  Document.  SECTION 2.13. Computation of Interest and Fees.  Interest on the Advances shall  be computed on the basis of a year of 360 days and paid for the actual number of days elapsed  (including the first day but excluding the last day).  The Unused Commitment Fee and any other  





 






  51  WBD (US) 57324867v5  fees payable hereunder shall be computed on the basis of a year of 360 days and paid for the  actual number of days elapsed (including the first day but excluding the last day).  SECTION 2.14. Increase in Commitments.  (a) The Borrower shall have the right, at any time and from time to time after  the Closing Date by written notice to and in consultation with the Administrative Agent,  to request an increase in the aggregate Revolver Commitments (but not the limitation on  the amount of Swing Advances specified in Section 2.01(b) or the amount of Letter of  Credit Obligations specified in Section 11.02(b)) (each such requested increase, a  “Commitment Increase”), by having one or more existing Lenders increase their  respective Revolver Commitments then in effect (each, an “Increasing Lender”), by  adding as a Lender with a new Revolver Commitment hereunder one or more Persons  that are not already Lenders (each, an “Additional Lender”), or a combination thereof,  provided that (i) any such request for a Commitment Increase shall be in a minimum  amount of $10,000,000, (ii) immediately after giving effect to any Commitment Increase,  (y) the aggregate Revolver Commitments shall not exceed $250,000,000 and (z) the  aggregate of all Commitment Increases effected shall not exceed $100,000,000, (iii) no  Default shall have occurred and be continuing on the applicable Commitment Increase  Date (as hereinafter defined) or shall result from any Commitment Increase, (iv)  immediately after giving effect to any Commitment Increase (including any Borrowings  in connection therewith and the application of the proceeds thereof), the Borrower shall  be in compliance with the covenants contained in Article V, (v) no Commitment Increase  shall be effective until the Administrative Agent has consented to such Commitment  Increase in writing, which consent may not be unreasonably withheld; and (vi) the  Borrower shall give the existing Lenders the right of first refusal for participating in any  such Commitment Increase by providing such notice to the Administrative Agent fifteen  (15) Domestic Business Days before making a request to any Person that is not already a  Lender.  An existing Lender shall have priority over Additional Lenders to participate in  such requested Commitment Increase if such existing Lender provides written notice of  its election to participate within fifteen (15) Domestic Business Days of such existing  Lender’s receipt of such notice.  Such notice from the Borrower shall specify the  requested amount of the Commitment Increase.  No Lender shall have any obligation to  become an Increasing Lender.  Any fees paid by the Borrower for a Commitment  Increase to an Increasing Lender, an Additional Lender, the Administrative Agent or  Truist Securities, Inc., as arranger, shall be for their own account and shall be in an  amount, if any, mutually agreed upon by each such party and the Borrower, in each  party’s sole discretion.  (b) Each Additional Lender must qualify as an Eligible Assignee (the  selection of which shall include the prior approval of the Administrative Agent).  The  Borrower, the other Loan Parties and each Additional Lender shall execute a joinder  agreement, and the Borrower, the other Loan Parties and each Lender shall execute all  such other documentation as the Administrative Agent and the Borrower may reasonably  require, all in form and substance reasonably satisfactory to the Administrative Agent and  the Borrower, to evidence the Revolver Commitment adjustments referred to in Section  2.14(e).  





 






52  WBD (US) 57324867v5  (c) If the aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent),  Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the  effective date (the “Commitment Increase Date,” which shall be a Domestic Business  Day not less than thirty (30) days prior to the Maturity Date).  The Administrative Agent  shall promptly notify the Lenders of such increase and the Commitment Increase Date.  Each of the Borrower, the Guarantors, the Lenders and the Administrative Agent  acknowledges and agrees that each Commitment Increase meeting the conditions set  forth in this Section 2.14 (x) shall not require the consent of any Guarantor or any Lender  other than the Increasing Lenders and Additional Lenders who have agreed to make such  Commitment Increase and shall not constitute an amendment, modification or waiver  subject to Section 9.05 and (y) subject to clause (d) of this Section 2.14, shall be effective  as of the Commitment Increase Date.  (d) Notwithstanding anything set forth in this Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase  (and no Commitment Increase shall be effective) unless the conditions set forth in  Section 2.14(a) as well as the following conditions precedent are satisfied on the  applicable Commitment Increase Date:  (i) The Administrative Agent shall have received the following, each dated the Commitment Increase Date and in form and substance reasonably  satisfactory to the Administrative Agent:  (1) a supplement to this Agreement signed by each Increasing Lender (if any) and Additional Lender (if any), setting forth the  reallocation of Revolver Commitments referred to in Section 2.14(e), all  other documentation required by the Administrative Agent pursuant to  Section 2.14(b) and such other modifications, documents or items as the  Administrative Agent, such Lenders or their counsel may reasonably  request;  (2) an instrument, duly executed by each Borrower and each Guarantor, if any, acknowledging and reaffirming its obligations under  this Agreement and the other Loan Documents to which it is a party;  (3) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions  adopted by the board of directors (or similar governing body) of such  party approving or consenting to such Commitment Increase;  (4) a certificate of the chief financial officer (or other comparable financial officer) of the Borrower, certifying that (x) as of the  Commitment Increase Date, all representations and warranties of the  Borrower and the Guarantors contained in this Agreement and the other  Loan Documents are true and correct (except to the extent any such  representation or warranty is expressly stated to have been made as of a  specific date, in which case such representation or warranty is true and  





 






53  WBD (US) 57324867v5  correct as of such date), except that for purposes of this Section 2.14(d)(i)  the representations and warranties contained in Section 4.04(a) shall be  deemed to refer to the most recent statements furnished pursuant to  clauses (a) and (b), respectively, of Section 5.01, (y) immediately after  giving effect to such Commitment Increase (including any Borrowings in  connection therewith and the application of the proceeds thereof), the  Borrower is in compliance with the covenants contained in Article V, and  (z) no Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof); (5) an opinion or opinions of counsel for the Borrower and the Guarantors, in a form reasonably satisfactory to Administrative Agent and  covering such matters as Administrative Agent may reasonably request,  addressed to the Administrative Agent and the Lenders, together with such  other documents, instruments and certificates as the Administrative Agent  shall have reasonably requested; and  (6) such other documents or items that the Administrative Agent, such Lenders or their counsel may reasonably request.  (ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the  applicable conditions set forth in this Agreement with respect to Acquisitions  shall have been satisfied.  (e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to giving  effect to the Commitment Increase shall be deemed to be repaid, (ii) immediately after  the effectiveness of the Commitment Increase, the Borrower shall be deemed to have  made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an  aggregate principal amount equal to the aggregate principal amount of the Initial  Advances and of the types and for the Interest Periods specified in a Notice of Borrowing  delivered to the Administrative Agent in accordance with Section 2.02(a), (iii) each  Lender shall pay to the Administrative Agent in immediately available funds an amount  equal to the difference, if positive, between (y) such Lender’s pro rata percentage  (calculated after giving effect to the Commitment Increase) of the Subsequent  Borrowings and (z) such Lender’s pro rata percentage (calculated without giving effect to  the Commitment Increase) of the Initial Advances, (iv) after the Administrative Agent  receives the funds specified in clause (iii) above, the Administrative Agent shall pay to  each Lender the portion of such funds equal to the difference, if positive, between (y)  such Lender’s pro rata percentage (calculated without giving effect to the Commitment  Increase) of the Initial Advances and (z) such Lender’s pro rata percentage (calculated  after giving effect to the Commitment Increase) of the amount of the Subsequent  Borrowings, (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably  in accordance with their respective Revolver Commitments (calculated after giving effect  to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest  





 






54  WBD (US) 57324867v5  on the Initial Advances to the Lenders entitled thereto, and (vii) Schedule 2.01 shall be  deemed amended to reflect the Revolver Commitments of all Lenders after giving effect  to the Commitment Increase.  The deemed payments made pursuant to clause (i) above in  respect of each SOFR Advance shall be subject to indemnification by the Borrower  pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other  than on the last day of the Interest Period relating thereto.  SECTION 2.15. Offer to Prepay in the Event of a Change in Control.  (a) Notice of Change in Control. (i) The Borrower will, within five (5) Domestic Business Days after the Borrower’s chief financial officer, principal accounting officer, treasurer,  comptroller or any other senior financial officer of the Borrower has knowledge  of the occurrence of any Change in Control, give written notice of such Change in  Control to the Administrative Agent and the Lenders.    (ii) If a Change in Control has occurred and (A) none of Fitch, Moody’s or S&P at such time has a rating in effect for the Senior Notes (i.e.,  the Senior Notes are unrated) or the Senior Notes have been repaid in full, (B)  at such time the Senior Notes are rated below BBB- by Fitch, below Baa3 by  Moody’s or below BBB- by S&P or (C) a Rating Decline occurs within sixty  (60) days thereafter, such notice with respect to the occurrence of a Change in Control shall contain and constitute an offer (which offer, in the circumstance contemplated by clause (C) above, shall be contingent upon a Rating Decline occurring during the sixty (60) day period referred to in such clause) to prepay the Advances as described in Section 2.15(c) and shall be accompanied by the certificate described in Section 2.15(f). (b) Condition to Borrower Action. The Borrower will not take any action that consummates or finalizes a Change in Control unless at least fifteen (15) Domestic  Business Days prior to such action it shall have given to the Administrative Agent written  notice of such impending Change in Control.   (c) Offer to Prepay. The offer to prepay the Advances (and all other Obligations owed to each Lender) contemplated by Section 2.15(a) shall be an offer to  prepay, in accordance with and subject to this Section 2.15, all of the Advances (and all  other Obligations owed to each Lender) on a date specified in such offer (the “Proposed  Prepayment Date”).  In the circumstances contemplated by clause (A) or clause (B) of  Section 2.15(a)(ii), such Proposed Prepayment Date shall be not less than ten (10)  days and not more than thirty (30) days after the date of such offer (and if the  Proposed Prepayment Date shall not be specified in such offer, the Proposed  Prepayment Date shall be the 20th day after the date of such offer). In the  circumstances contemplated by clause (C) of Section 2.15(a)(ii), such Proposed  Prepayment Date shall be not less than ten (10) days and not more than thirty (30)  days after the first Rating Decline occurs (and if the Proposed Prepayment Date shall  not be specified in such offer, the Proposed Prepayment Date shall be the 20th day  after the date of the first Rating Decline).  





 






55  WBD (US) 57324867v5  (d) Acceptance. The Borrower shall, on or before the seventh Domestic Business Day prior to the Proposed Prepayment Date, give written renotification to the  Administrative Agent and each Lender. Each Lender may accept the offer to prepay made  pursuant to this Section 2.15 by causing a notice of such acceptance to be delivered to the  Borrower on or before the first Domestic Business Day prior to the Proposed Prepayment  Date. A failure by a Lender to respond to an offer to prepay made pursuant to this Section  2.15 on or before such date shall be deemed to constitute a rejection of such offer by such  Lender (each, a “Rejecting Lender”).  The Lenders which affirmatively accept the  Borrower’s offer to prepay the Advances are hereinafter referred to as the “Accepting  Lenders.”  (e) Prepayment. Prepayment under this Section 2.15 shall be at 100% of the principal amount of each Accepting Lender’s Applicable Percentage together with  interest accrued to the date of repayment (and all other Obligations) in accordance with  each such Accepting Lender’s Applicable Percentage.  The Borrower’s prepayment shall  be made on the Proposed Prepayment Date and shall reduce the Revolver Commitments  by the amount of the prepayments to the Accepting Lenders.  (f) Officer’s Certificate. Each offer to prepay the Advances (and all other Obligations) pursuant to this Section 2.15 shall be accompanied by a certificate, executed  by a responsible officer of the Borrower and dated the date of such offer, specifying: (i)  the Proposed Prepayment Date, (ii) that such offer is made pursuant to this Section 2.15,  (iii) that the conditions of this Section 2.15 have been fulfilled, and (iv) in reasonable detail, the nature and date of the Change in Control. (g) Letter of Credit Obligations.  If the Letter of Credit Issuer is an Accepting Lender, the Borrower shall Cash Collateralize the then outstanding amounts of all Letter  of Credit Obligations as of the Proposed Prepayment Date plus any accrued and unpaid  interest thereon in the manner provided in Section 6.03.  If the Letter of Credit Issuer is  not an Accepting Lender, the Borrower shall Cash Collateralize the Letter of Credit  Obligations in an amount equal to the Accepting Lenders’ aggregate share of any  Undrawn Amounts in respect of any outstanding Letters of Credit.    (h) Agent Resignation.  If the Administrative Agent is an Accepting Lender, then the Administrative Agent shall give notice of its resignation to the Rejecting Lenders  no later than five (5) Domestic Business Days after the completion of the prepayments by  the Borrower on the Proposed Prepayment Date in accordance with this Section 2.15.   After such resignation notice is received, the Rejecting Lenders shall appoint a successor  to the Administrative Agent in accordance with the terms of Section 7.06.  SECTION 2.16. Options to Extend.    (a) First Option to Extend.  Borrower shall have the option to extend the term of this Agreement from the Original Maturity Date to the First Extended Maturity Date,  upon satisfaction of each and every one of the following conditions precedent in  Administrative Agent’s discretion:  





 






56  WBD (US) 57324867v5  (i) Borrower shall provide Administrative Agent with a written notice requesting to exercise the First Option to Extend in a form reasonably acceptable  to the Administrative Agent not less than ninety (90) days and not more than one  hundred twenty (120) days prior to the Original Maturity Date; provided, such  request may be revoked by written notice to Administrative Agent up to thirty  (30) days prior to the Original Maturity Date; such notice requesting to exercise the First Option to Extend shall be promptly provided to the Lenders and each Lender response shall be promptly provided to Administrative Agent.  The Administrative Agent shall inform Borrower of its decision to approve the Borrower’s request to extend the Agreement no later than twenty (20) days prior to the Original Maturity Date. (ii) The Lenders have approved Borrower’s request to exercise the First Option to Extend, in their sole discretion.  (iii) As of the date of Borrower’s delivery of notice of request to exercise the First Option to Extend, and as of the Original Maturity Date, no  Default shall exist, and no default under the Loan Documents shall exist for which  Administrative Agent has provided notice of such default and Borrower has failed  to remedy such default within the provided cure period after receiving such  notice.  (iv) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct in all material  respects on and as of the Original Maturity Date, as if made on and as of such date  except for representations and warranties expressly stated to relate to a specific  earlier date, in which case such representations and warranties were true and  correct in all material respects as of such earlier date.  (v) On or before the Original Maturity Date, Borrower shall pay to Administrative Agent, for the ratable account of each Lender, an extension fee in  the amount of three one-hundredths of one percent (0.03%) of the aggregate  principal amount of the Revolver Commitments of all of the Lenders in effect on  the Closing Date, in immediately available funds.  (vi) The Borrower shall have paid all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent (including reasonable  attorneys’ fees and expenses) in connection with such extension.  Except as modified by this First Option to Extend, the terms and conditions of this  Agreement and the other Loan Documents as modified and approved by Lenders shall  remain unmodified and in full force and effect.    (b) Second Option to Extend.  Borrower shall have the option to extend the term of this Agreement from the First Extended Maturity Date to the Second Extended  Maturity Date, upon satisfaction of each and every one of the following conditions  precedent in Administrative Agent’s discretion:  





 






57  WBD (US) 57324867v5  (i) Borrower shall provide Administrative Agent with a written notice requesting to exercise the Second Option to Extend in a form reasonably  acceptable to the Administrative Agent not less than ninety (90)  days and not  more than one hundred twenty (120) days prior to the First Extended Maturity  Date; provided, such request may be revoked by written notice to Administrative  Agent up to thirty (30) days prior to the First Extended Maturity Date; such notice  requesting to exercise the Second Option to Extend shall be promptly provided to  the Lenders and each Lender response shall be promptly provided to  Administrative Agent. The Administrative Agent shall inform Borrower of its  decision to approve the Borrower’s request to extend the Agreement no later than  twenty (20) days prior to the First Extended Maturity Date.  (ii) The Lenders have approved Borrower’s request to exercise the Second Option to Extend, in their sole discretion.  (iii) As of the date of Borrower’s delivery of notice of request to exercise the Second Option to Extend, and as of the First Extended Maturity Date,  no Default shall exist, and no default under the Loan Documents shall exist for  which Administrative Agent has provided notice of such default and Borrower  has failed to remedy such default within the provided cure period after receiving  such notice.  (iv) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct in all material  respects on and as of the First Extended Maturity Date, as if made on and as of  such date except for representations and warranties expressly stated to relate to a  specific earlier date, in which case such representations and warranties were true  and correct in all material respects as of such earlier date.  (v) On or before the First Extended Maturity Date, Borrower shall pay to Administrative Agent, for the ratable account of each Lender, an extension fee  in the amount of three one-hundredths of one percent (0.03%) of the aggregate  principal amount of the Revolver Commitments of all of the Lenders in effect on  the Closing Date, in immediately available funds.  (vi) The Borrower shall have paid all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent (including reasonable  attorneys’ fees and expenses) in connection with such extension.  Except as modified by this Second Option to Extend, the terms and conditions of  this Agreement and the other Loan Documents as modified and approved by Lenders  shall remain unmodified and in full force and effect.  ARTICLE III  CONDITIONS TO BORROWINGS  SECTION 3.01. Conditions to Closing and First Borrowing.  The obligation of each  Lender to make an Advance on the Closing Date (and the obligation of the Letter of Credit Issuer  





 






58  WBD (US) 57324867v5  to issue a Letter of Credit on the Closing Date) is subject to the satisfaction of the conditions set  forth in Section 3.02 and the following additional conditions:  (a) receipt by the Administrative Agent from each of the parties hereto of a duly executed counterpart of this Agreement signed by such party;  (b) receipt by the Administrative Agent of a duly executed Revolver Note for the account of each Lender and a duly executed Swing Advance Note for the account of  the Swing Line Lender, in each case complying with the provisions of Section 2.04;  (c) receipt by the Administrative Agent of an opinion of Steptoe & Johnson PLLC, as counsel to the Loan Parties, dated as of the Closing Date (or in the case of an  opinion delivered pursuant to Section 5.27 hereof such later date as specified by the  Administrative Agent) in a form reasonably satisfactory to Administrative Agent and  covering such matters relating to the transactions contemplated hereby as the  Administrative Agent may reasonably request;  (d) receipt by the Administrative Agent of a certificate (the “Closing Certificate”), dated the Closing Date and in a form satisfactory to the Administrative  Agent, signed by a chief financial officer or other authorized officer of each Loan Party,  to the effect that, to his knowledge, (i) no Default has occurred and is continuing on the  Closing Date and (ii) the representations and warranties of the Loan Parties contained in  Article IV are true on and as of the Closing Date (except representations and warranties  which expressly relate solely to an earlier date or time, which representations and  warranties shall be true and correct on and as of the specific dates or times referred to  therein);  (e) receipt by the Administrative Agent of all documents which the Administrative Agent or any Lender may reasonably request relating to the existence of  each Loan Party, the authority for and the validity of this Agreement, the Notes and the  other Loan Documents, and any other matters relevant hereto, all in form and substance  satisfactory to the Administrative Agent, including without limitation a certificate of  incumbency of each Loan Party (the “Officer’s Certificate”), signed by the Secretary, an  Assistant Secretary, a member, manager, partner, trustee or other authorized  representative of the respective Loan Party, certifying as to the names, true signatures and  incumbency of the officer or officers of the respective Loan Party, authorized to execute  and deliver the Loan Documents, and certified copies of the following items:  (i) the Loan  Party’s Organizational Documents; (ii) the Loan Party’s Operating Documents; (iii) if  applicable, a certificate of the Secretary of State of such Loan Party’s state of  organization as to the good standing or existence of such Loan Party, and (iv) the  Organizational Action, if any, taken by the board of directors of the Loan Party or the  members, managers, trustees, partners or other applicable Persons authorizing the Loan  Party’s execution, delivery and performance of this Agreement, the Notes and the other  Loan Documents to which the Loan Party is a party;  (f) receipt by the Administrative Agent of the financial statements and other financial information described in Section 4.04(a), all in form and substance satisfactory  to the Administrative Agent;  





 






59  WBD (US) 57324867v5  (g) receipt by the Administrative Agent of evidence acceptable to the Administrative Agent that the insurance required under this Agreement is in full force  and effect;  (h) the Borrower shall have paid all fees required to be paid by it on the Closing Date, including all fees required hereunder and under the Administrative Agent’s  Letter Agreement to be paid as of such date, and shall have reimbursed the  Administrative Agent for all fees, costs and expenses of closing the transactions  contemplated hereunder and under the other Loan Documents, including the reasonable  legal, audit and other document preparation costs incurred by the Administrative Agent;   (i) the repayment in full and replacement of the Existing Credit Agreement; (j) at least five (5) days prior to the Closing Date, the Borrower shall deliver, on behalf of itself and any Guarantor that qualifies as a “legal entity customer” under the  Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to  itself and to such Guarantor, to each Lender that so requests such a Beneficial Ownership  Certification; and  (k) receipt of such other documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request.   For purposes of determining compliance with the conditions specified in this Section 3.01, 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.  SECTION 3.02. Conditions to All Borrowings.  The obligation of each Lender to  make an Advance on the occasion of each Borrowing, the obligation of the Swing Line Lender to  make a Swing Advance and the obligation of the Letter of Credit Issuer to issue a Letter of  Credit are subject to the satisfaction of the following conditions:  (a) With respect to Advances, receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.02;  (b) the fact that, immediately before and after such Borrowing (or issuance of a Letter of Credit, as the case may be), no Default or Event of Default shall have occurred  and be continuing;  (c) the fact that the representations and warranties of the Loan Parties contained in Article IV of this Agreement shall be true and correct in all material respects  (provided, that if any such representation or warranty is subject to any qualification or  limitation by reference to “materiality,” “material adverse effect,” “Material Adverse  Effect,” or another materiality threshold, such representation or warranty shall be true and  correct in all respects) on and as of the date of such Borrowing (or issuance of a Letter of  Credit, as the case may be) except representations and warranties which expressly relate  





 






60  WBD (US) 57324867v5  solely to an earlier date or time, which representations and warranties shall be true and  correct on and as of the specific dates or times referred to therein;   (d) the fact that, immediately after such Borrowing (or issuance of a Letter of Credit, as the case may be), (i) the aggregate outstanding principal amount of the  Revolver Advances of each Lender together with such Lender’s Applicable Percentage of  the aggregate outstanding principal amount of all Swing Advances and Letter of Credit  Obligations, will not exceed the amount of its Revolver Commitment; and (ii) the  aggregate outstanding principal amount of the Revolver Advances together with the  aggregate outstanding principal amount of all Swing Advances and Letter of Credit  Obligations, will not exceed the aggregate amount of the Revolver Commitments of all of  the Lenders as of such date; and  (e) if the issuance of a Letter of Credit is requested, (i) all conditions set forth in Sections 11.02 and 11.03 shall have been satisfied and (ii) at any time there is a  Defaulting Lender, the Borrower shall have provided Cash Collateral as set forth in  Section 9.19 to eliminate the Letter of Credit Issuer’s Fronting Exposure (after giving  effect to the reallocation set forth in Section 9.20(a)(v)) with respect to such Defaulting  Lender arising from either the Letter of Credit then proposed to be issued and all other  Letter of Credit Obligations as to which the Letter of Credit Issuer has Fronting  Exposure, as it may elect in its sole discretion.   Each Borrowing and issuance of a Letter of Credit hereunder shall be deemed to be a  representation and warranty by the Loan Parties on the applicable date as to the truth and  accuracy of the applicable facts specified in clauses (b) through (e) of this Section.  ARTICLE IV  REPRESENTATIONS AND WARRANTIES  The Borrower and the Guarantors represent and warrant that:  SECTION 4.01. Existence and Power.  The Borrower is a corporation, and each of  its Subsidiaries is a corporation, limited liability company or other legal entity duly organized,  validly existing and in good standing under the laws of the jurisdiction of its incorporation or  organization, as the case may be.  Each of the Borrower and each of its Subsidiaries have the  requisite corporate or limited liability company power to own or lease its properties and to  engage in the business it presently conducts or proposes to conduct, except where the failure to  have such power would not have a Material Adverse Effect.  The Borrower and each of its  Subsidiaries are duly licensed or qualified and in good standing in every jurisdiction where the  property owned or leased by it or the nature of the business transacted by it or both makes such  licensing or qualification necessary, except to the extent such failure to be so licensed or  qualified would not have a Material Adverse Effect. The Borrower and each of its Subsidiaries  have all organizational powers and all governmental licenses, authorizations, consents and  approvals (including, without limitation, all Environmental Authorizations and material Required  Environmental Notices) required to carry on its business as now conducted.   SECTION 4.02. Organizational and Governmental Authorization; No  Contravention.  The execution, delivery and performance by each Loan Party of this Agreement,  





 






61  WBD (US) 57324867v5  the Notes and the other Loan Documents to which such Loan Party is a party (i) are within such  Loan Party’s organizational powers, (ii) have been duly authorized by all necessary  Organizational Action, (iii) require no action by or in respect of, or filing with, any  Governmental Authority, (iv) do not contravene, or constitute a default under, any provision of  applicable Laws or of the Organizational Documents and Operating Documents of such Loan  Party or of any material agreement, judgment, injunction, order, decree or other material  instrument binding upon such Loan Party or any of its Subsidiaries, and (v) do not result in the  creation or imposition of any Lien on any asset of such Loan Party or any of its Subsidiaries.   SECTION 4.03. Binding Effect.  This Agreement constitutes a valid and binding  agreement of the Loan Parties enforceable in accordance with its terms, and the Notes and the  other Loan Documents, when executed and delivered in accordance with this Agreement, will  constitute valid and binding obligations of the Loan Parties party to such Loan Document  enforceable in accordance with their respective terms, provided that the enforceability hereof and  thereof is subject in each case to general principles of equity and to bankruptcy, insolvency and  similar laws affecting the enforcement of creditors’ rights generally.  SECTION 4.04. Financial Information.  (a) The audited consolidated balance sheet of the Borrower as of December 31, 2018 and the related consolidated statements of income, shareholders’ equity and  cash flows for the Fiscal Year then ended, reported on by KPMG LLP, copies of which  have been delivered to the Administrative Agent for delivery to each of the Lenders (the  “Annual Statements”), and the unaudited consolidated financial statements of the  Borrower for the interim period ended September 30, 2019, copies of which have been  made available to each of the Lenders (the “Interim Statements” and collectively with the  Annual Statements, the “Historical Statements”). The Historical Statements were  compiled from the books and records maintained by the Borrower’s management, and  taken together, to the knowledge of the Borrower, fairly present in all material respects,  in conformity with GAAP, the consolidated financial position of the Borrower and its  Consolidated Subsidiaries as of such dates and their consolidated results of operations  and cash flows for such periods stated.    (b) To the knowledge of the Borrower, (i) neither the Borrower nor any Subsidiary of the Borrower has any material liabilities, contingent or otherwise, or  material forward or long-term commitments that are not disclosed in the Historical  Statements or in the notes thereto, and (ii) except as disclosed therein, there are no  unrealized or anticipated losses from any commitments of the Borrower or any  Subsidiary of the Borrower which may cause a Material Adverse Effect.    (c) Since September 30, 2019, there has been no event, act, condition or occurrence having a Material Adverse Effect.  SECTION 4.05. Litigation.  Except as disclosed in Schedule 4.05, there are no  actions, suits, proceedings or investigations pending or, to the knowledge of the Loan Parties,  threatened against any Loan Party at law or equity before any Governmental Authority which  individually or in the aggregate may result in any Material Adverse Effect.  None of the Loan  Parties is in violation of any order, writ, injunction or any decree of any Governmental Authority  





 






62  WBD (US) 57324867v5  which may result in any Material Adverse Effect.  There is no action, suit, proceeding or  investigation pending, or to the knowledge of the Loan Parties threatened, against or affecting  the Loan Parties or any of their respective Subsidiaries before any arbitrator or any  Governmental Authority which in any manner draws into question the validity or enforceability  of, or could impair the ability of the Loan Parties to perform their respective obligations under,  this Agreement, the Notes or any of the other Loan Documents.  SECTION 4.06. Compliance with ERISA.  Except as set forth on Schedule 4.06,  (a) There has been no Prohibited Transaction with respect to any Benefit Arrangement or any Plan or, to the knowledge of any Loan Party, with respect to any  Multiemployer Plan or Multiple Employer Plan, which could result in any material  liability of any Loan Party or any other member of the Controlled Group.  The Loan  Parties and all other members of the Controlled Group have made when due any and all  payments required to be made under any agreement relating to a Multiemployer Plan or a  Multiple Employer Plan or any applicable Law pertaining thereto.  With respect to each  Plan and Multiemployer Plan, the Loan Parties and each other member of the Controlled  Group (i) have fulfilled in all material respects their obligations under the minimum  funding standards of ERISA, (ii) have not incurred any liability to the PBGC (other than  with respect to the payment of premiums that are not yet due), and (iii) have not had  asserted against them any penalty for failure to fulfill the minimum funding requirements  of ERISA;  (b) To the Loan Parties’ knowledge, each Multiemployer Plan and Multiple Employer Plan is able to pay benefits thereunder when due;  (c) Neither any Loan Party nor any other member of the Controlled Group has instituted or intends to institute proceedings to terminate any Plan;  (d) No event requiring notice to the PBGC under Section 302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur with respect to any Plan, and no  amendment with respect to which security is required under Section 307 of ERISA has  been made or is reasonably expected to be made to any Plan;  (e) The aggregate actuarial present value of all benefit liabilities (whether or not vested) under all Plans in the aggregate, determined on a plan termination basis, as  disclosed in, and as of the date of, the most recent actuarial report for each respective  Plan, does not exceed the aggregate fair market value of the assets of the Plans by a  material amount;  (f) Neither any of the Loan Parties nor any other member of the Controlled Group has incurred or reasonably expects to incur any material withdrawal liability under  ERISA to any Multiemployer Plan or Multiple Employer Plan.  Neither any of the Loan  Parties nor any other member of the Controlled Group has been notified by any  Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple  Employer Plan has been terminated within the meaning of Title IV of ERISA and, to the  





 






  63  WBD (US) 57324867v5  knowledge of the Loan Parties, no Multiemployer Plan or Multiple Employer Plan is  reasonably expected to be reorganized or terminated, within the meaning of Title IV of  ERISA;  (g) Except as could not result in any material liability to any of the Loan  Parties or any other member of the Controlled Group, to the extent that any Benefit  Arrangement is insured, the Loan Parties and all other members of the Controlled Group  have paid when due all premiums required to be paid for all periods through the Closing  Date, and to the extent that any Benefit Arrangement is funded other than with insurance,  the Borrower and all other members of the Controlled Group have made when due all  contributions required to be paid for all periods through the Closing Date; and  (h) All Plans and Benefit Arrangements have been administered in all material  respects in accordance with their terms and applicable Law.  SECTION 4.07. Compliance with Laws; Payment of Taxes.  The Loan Parties and  their respective Subsidiaries are in compliance with all applicable Laws and similar requirements  of Governmental Authorities, except where non-compliance, alone or in the aggregate, could not  reasonably be expected to have a Material Adverse Effect.  To the knowledge of the Loan  Parties, there have been filed on behalf of the Loan Parties and their respective Subsidiaries all  Federal, state and local income, excise, property and other tax returns which are required to be  filed by them, other than those tax returns the failure to file would be immaterial, and all taxes  due pursuant to such returns or pursuant to any assessment received by or on behalf of the Loan  Parties or their Subsidiaries have been paid, except to the extent that such taxes, fees,  assessments and other charges are being contested in good faith by appropriate proceedings  diligently conducted and for which such reserves or other appropriate provisions, if any, as shall  be required by GAAP shall have been made.  The charges, accruals and reserves on the books of  the Loan Parties and their respective Subsidiaries in respect of taxes or other governmental  charges are, in the opinion of the Loan Parties, adequate.  To the knowledge of the Loan Parties,  no Loan Party has been given or been requested to give a waiver of the statute of limitation  relating to the payment of Federal, state, local  or foreign taxes.  SECTION 4.08. Subsidiaries.  The Borrower does not have any Subsidiaries except  those Subsidiaries listed on Schedule 4.24 and, in the case of any Subsidiary acquired or formed  after the Closing Date, as set forth in any Compliance Certificate delivered pursuant to Section  5.01(c), which, taken together, accurately set forth each such Subsidiary’s complete name and  jurisdiction of organization.    SECTION 4.09. Investment Company Act, Etc.  No Loan Party nor any Subsidiary  of a Loan Party is an “investment company” within the meaning of the Investment Company Act  of 1940, as amended.  None of the Loan Parties is subject to any applicable Law which limits its  ability to borrow money.  SECTION 4.10. All Consents Required.  All approvals, authorizations, consents,  orders or other actions of any Person or of any Governmental Authority (if any) required in  connection with the due execution, delivery and performance by the Loan Parties of this  Agreement and any Loan Document to which any Loan Party is a party, have been obtained.  





 






64  WBD (US) 57324867v5  SECTION 4.11. Ownership of Property; Liens.  Each of the Loan Parties and their  respective Subsidiaries has title or the contractual right to possess and operate its properties  sufficient for the conduct of its business, except for minor defects in title that do not interfere  with their respective ability to conduct their respective businesses as currently conducted or to  utilize such properties for their intended use, and none of such properties is subject to any Lien  except as permitted in Section 5.13.  All material leases of Property are in full force and effect  without the necessity for any consent which has not been previously obtained upon  consummation of the transactions contemplated hereby.    SECTION 4.12. Material Contracts; No Default.  All material contracts relating to  the business operations of each Loan Party and each Subsidiary of any Loan Party (the “Material  Contracts”), including all labor contracts, are valid, binding and enforceable upon such Loan  Party or Subsidiary and, to the Borrower’s knowledge, each of the other parties thereto in  accordance with their respective terms.  No Loan Party nor any of its respective Subsidiaries is in  default under or with respect to any material agreement or instrument to which it is a party or by  which it or any of its property is bound (including any Material Contract), except such defaults  as to which requisite waivers or consents have been obtained or which are immaterial, to the  Loan Parties’ knowledge, with respect to parties other than such Loan Party or Subsidiary.  No  Default or Event of Default has occurred and is continuing; no event has occurred and is  continuing and no condition exists, or would result from any Advance or from the application of  the proceeds therefrom, which constitutes or would reasonably be expected to constitute a  Default or Event of Default.  None of the Loan Parties is in violation of any Organizational  Documents or Operating Documents other than a violation that would be immaterial. None of the  Loan Parties or their Subsidiaries is bound by any contractual obligation, or subject to any  restriction in any organization document, or any requirement of applicable Law which could  reasonably be expected to result in a Material Adverse Effect.  SECTION 4.13. Full Disclosure.  To the knowledge of the Borrower, the Loan  Parties have disclosed to the Lenders in writing any and all facts which, alone or in the  aggregate, materially and adversely affect the Borrower and its Subsidiaries or in the future  could reasonably be expected to have a Material Adverse Effect.  SECTION 4.14. Environmental Matters. Except as disclosed on Schedule 4.14, and  except for matters which could not reasonably be expected to result in an Material Adverse  Effect, individually or in the aggregate:  (a) None of the Loan Parties have received any Environmental Notice, whether directed or issued to any Loan Party or relating or pertaining to any prior owner,  operator or occupant of any Property, and to the knowledge of each Loan Party, there are  no circumstances which could reasonably be expected to result in an Environmental  Notice.  (b) No activity of any Loan Party at any Property is being or has been conducted in violation of any Environmental Law or Environmental Authorization and to  the knowledge of any Loan Party no activity of any prior owner, operator or occupant of  any Property was conducted in violation of any Environmental Law.  





 






65  WBD (US) 57324867v5  (c) To the knowledge of each Loan Party, there are no Hazardous Materials present in, under, or emanating from, or to any Loan Party’s knowledge emanating to,  any Property or any portion thereof which result in Contamination.  To the knowledge of  each Loan Party, there are no Hazardous Materials on any Property or any portion  thereof, except in compliance with Environmental Laws and Environmental  Authorizations.  (d) Each Loan Party has all Environmental Authorizations and all such Environmental Authorizations are in full force and effect.  (e) Each Loan Party has submitted to a Governmental Authority and/or maintains, as appropriate, all Required Environmental Notices.  (f) No activity of any Loan Party is being or has been conducted in violation of any Environmental Law or Environmental Authorization and to the knowledge of any  Loan Party no activity of any of their respective predecessors was conducted in violation  of any Environmental Law.  (g) To the knowledge of each Loan Party, no facility or site to which any Loan Party, either directly or indirectly by a third party, has sent Hazardous Materials for  storage, treatment or disposal has been or is being operated in violation of Environmental  Laws or pursuant to Environmental Laws is identified or proposed to be identified on any  list of contaminated properties or other properties which pursuant to Environmental Laws  are the subject of an investigation, cleanup, removal, remediation or other response action  by a Governmental Authority.  (h) To the knowledge of each Loan Party, no portion of any Property is identified or proposed to be identified on any list of contaminated properties or other  properties which pursuant to Environmental Laws are the subject of an investigation or  remediation action by a Governmental Authority.  (i) No lien or other similar encumbrance authorized by Environmental Laws exists against any Property and no Loan Party has any reason to believe that such a lien  or encumbrance may be imposed.  SECTION 4.15. [Reserved].   SECTION 4.16. Capital Securities.  All Capital Securities, debentures, bonds, notes  and all other securities of each Loan Party and their respective Subsidiaries presently issued and  outstanding are validly and properly issued in accordance with all applicable laws, including, but  not limited to, the “Blue Sky” laws of all applicable states and the federal securities laws.  The  issued shares of Capital Securities of each of the Loan Party’s respective Subsidiaries are owned  by the Loan Parties free and clear of any Lien or adverse claim, except for any restrictions on  transfer generally arising under any applicable securities law.    SECTION 4.17. Margin Stock.  No Loan Party nor any of its respective  Subsidiaries is engaged principally, or as one of its important activities, in the business of  purchasing or carrying any Margin Stock, and no part of the proceeds of any Advance will be  





 






66  WBD (US) 57324867v5  used to purchase or carry any Margin Stock or to extend credit to others for the purpose of  purchasing or carrying any Margin Stock, or be used for any purpose which violates, or which is  inconsistent with, the provisions of Regulations U or X of the Board of Governors of the Federal  Reserve System.  Following the application of the proceeds from each Advance, 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, will be “Margin Stock.”  SECTION 4.18. [Reserved].  SECTION 4.19. Burdensome Restrictions.  None of the Loan Parties is bound by  any contractual obligation, or subject to any restriction in any Organizational Document, or any  requirement of applicable Law, which could reasonably be expected to result in a Material  Adverse Effect.  SECTION 4.20. Labor Matters.  Each of the Loan Parties and their respective  Subsidiaries is in compliance with the Labor Contracts and all applicable federal, state and local  labor and employment laws, including those related to equal employment opportunity and  affirmative action, labor relations, minimum wage, overtime, child labor, medical insurance  continuation, worker adjustment and relocation notices, immigration controls and worker and  unemployment compensation, except where the failure to comply could reasonably be expected  to result in a Material Adverse Effect.  To the knowledge of the Borrower, there are no  threatened strikes, lockouts or other organized work stoppages or slowdowns, at facilities of any  Loan Party which could reasonably be expected to result in a Material Adverse Effect.  The  hours worked by and payment made to employees of the Loan Parties and each Subsidiary of any  Loan Party have been in material compliance with the Fair Labor Standards Act and any other  applicable federal, state or foreign law dealing with such matters.  No Loan Party nor any  Subsidiary of a Loan Party is party to a collective bargaining agreement except for those  agreements described on Schedule 4.20 (copies of which have been provided to the  Administrative Agent).  SECTION 4.21. Patents, Trademarks, Etc.  The Borrower and its Subsidiaries own,  or are licensed to use, all patents, trademarks, trade names, copyrights, technology, know-how  and processes, service marks and rights with respect to the foregoing that are material to the  businesses, assets, operations, properties or condition (financial or otherwise) of the Borrower  and its Subsidiaries taken as a whole.  The use of such patents, trademarks, trade names,  copyrights, technology, know-how, processes and rights with respect to the foregoing by the  Borrower and its Subsidiaries, does not infringe on the rights of any Person.  SECTION 4.22. Insurance.  The Loan Parties and each of their Subsidiaries has  (either in the name of such Loan Party or in such Subsidiary's name), with financially sound and  reputable insurance companies, insurance in at least such amounts and against at least such risks  (including on all its property, and public liability and worker's compensation) as are usually  insured against in the same general area by companies of established repute engaged in the same  or similar business in the exercise of prudent business practice. Schedule 4.22 sets forth a  complete list of all such insurance.    SECTION 4.23. [Reserved].   





 






67  WBD (US) 57324867v5  SECTION 4.24. Ownership Structure.  As of the Closing Date, Schedule 4.24 is a  complete and correct list of all Subsidiaries of the Borrower and of each Loan Party setting forth  for each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Person  holding any Capital Securities in such Subsidiary, (iii) the nature of the Capital Securities held  by each such Person, and (iv) the percentage of ownership of such Subsidiary represented by  such Capital Securities.  Except as disclosed in such Schedule, as of the Closing Date (i) the  Borrower and its Subsidiaries own, free and clear of all Liens and have the unencumbered right  to vote, all outstanding Capital Securities in each Person shown to be held by it on such  Schedule, (ii) all of the issued and outstanding Capital Securities of each Person are validly  issued, fully paid and nonassessable and (iii) there are no outstanding subscriptions, options,  warrants, commitments, preemptive rights or agreements of any kind (including, without  limitation, any stockholders’ or voting trust agreements) for the issuance, sale, registration or  voting of, or outstanding securities convertible into, any additional Capital Securities of any type  in, any such Person.  All capital contributions and other consideration required to be made or  paid in connection with any such Capital Securities have been made or paid.   SECTION 4.25. Reports Accurate; Disclosure.  All information, exhibits, financial  statements, documents, books, records or reports furnished by the Loan Parties to the  Administrative Agent or any Lender in connection with this Agreement or any Loan Document,  including without limitation all reports furnished pursuant to Section 4.04, are true, complete and  accurate in all material respects; it being recognized by the Administrative Agent and the  Lenders that the projections and forecasts provided by the Borrower in good faith and based  upon reasonable assumptions are not to be viewed as facts and that actual results during the  period or periods covered by any such projections and forecasts may differ from the projected or  forecasted results.  Neither this Agreement, nor any Loan Document, nor any agreement,  document, certificate or statement furnished to the Administrative Agent or the Lenders in  connection with the transactions contemplated hereby contains any untrue statement of material  fact or omits to state a material fact necessary in order to make the statements contained herein  or therein not misleading in light of the circumstances under which they were made; it being  recognized by the Administrative Agent and the Lenders that the projections and forecasts  provided by the Borrower in good faith and based upon reasonable assumptions are not to be  viewed as facts and that actual results during the period or periods covered by any such  projections and forecasts may differ from the projected or forecasted results.   SECTION 4.26. Existing Indebtedness; Future Liens.    (a) Schedule 4.26 sets forth a complete and correct list of all outstanding Debt of the Loan Parties and their respective Subsidiaries as of the Closing Date (including a  description of the obligors and obligees, principal amount outstanding and collateral  therefor, if any, and Guarantee thereof, if any).  Neither any Loan Party nor any  Subsidiary of a Loan Party is in default and no waiver of default is currently in effect, in  the payment of any principal or interest on any Debt of Loan Party or any subsidiary and  no event or condition exists with respect to any Debt of any Loan Party or any Subsidiary  that would permit (or that with notice or the lapse of time, or both, would permit) one or  more Persons to cause such Debt to become due and payable before its stated maturity or  before its regularly scheduled dates of payment.  





 






68  WBD (US) 57324867v5  (b) Except as disclosed in Schedule 4.26, neither any Loan Party nor any Subsidiary thereof has agreed or consented to cause or permit in the future (upon the  happening of a contingency or otherwise) any of its property, whether now owned or  hereafter acquired, to be subject to a Lien not permitted by Section 5.13.  (c) Neither any Loan Party nor any Subsidiary thereof is a party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of such  Loan Party or such Subsidiary, any agreement relating thereto or any other agreement  (including, but not limited to, its charter or other organizational document) which limits  the amount of, or otherwise imposes restrictions on the incurring of, Debt of the any Loan  Party or Subsidiary thereof, except as specifically indicated in Schedule 4.26.   SECTION 4.27. [Reserved].   SECTION 4.28. Schedules.  Should any of the information or disclosures provided  on any of the Schedules attached hereto become outdated or incorrect in any material respect, the  Borrower shall promptly provide the Administrative Agent in writing with such revisions or  updates to such Schedule as may be necessary or appropriate to update or correct same;  provided, however, that no Schedule shall be deemed to have been amended, modified or  superseded by any such correction or update, nor shall any breach of warranty or representation  resulting from the inaccuracy or incompleteness of any such Schedule be deemed to have been  cured thereby, unless and until the Required Lenders, in their reasonable discretion, shall have  accepted in writing such revisions or updates to such Schedule.    SECTION 4.29. Survival of Representations and Warranties, Etc.  All  representations and warranties of the Loan Parties contained herein or made in connection  herewith shall survive the making of Advances and issuance of Letters of Credit and shall not be  waived by the execution and delivery of the Agreement, any investigation by the Administrative  Agent or the Lenders, the making of Advances, issuance of Letters of Credit, or payment in full  of the Obligations.    SECTION 4.30. Loans and Investments.  No Loan Party nor any of its respective  Subsidiaries has made an Investment which is outstanding or existing on the Closing Date except  as set forth on Schedule 5.12.  SECTION 4.31. [Reserved].    SECTION 4.32. USA Patriot Act; OFAC.   (a) No Loan Party nor any Affiliate of a Loan Party is (1) a Person that resides or has a place of business in a country or territory named on such lists or which is  designated as a Non-Cooperative Jurisdiction by the Financial Action Task Force on  Money Laundering (“FATF”), or whose subscription funds are transferred from or  through such a jurisdiction; (2) a “Foreign Shell Bank” within the meaning of the USA  Patriot Act, i.e., a foreign lender that does not have a physical presence in any country  and that is not affiliated with a Lender that has a physical presence and an acceptable  level of regulation and supervision; or (3) a person or entity that resides in or is organized  under the laws of a jurisdiction designated by the United States Secretary of the Treasury  





 






69  WBD (US) 57324867v5  under Section 311 or 312 of the USA Patriot Act as warranting special measures due to  money laundering concerns.  (b) No Loan Party or any Affiliate of a Loan Party (i) is a Sanctioned Entity, (ii) has a more than 10% of its assets located in Sanctioned Entities, or (iii) derives more than 10% of its operating income from investments in, or transactions with Sanctioned Entities.  The proceeds of any Advance will not be used and have not been used to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Entity.  No Loan Party or any Affiliate of a Loan Party are in violation of and shall not violate any of the country or list based economic and trade sanctions administered and enforced by OFAC that are described or referenced at http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to time. (c) None of the Loan Parties, nor any of their respective Subsidiaries, is in violation of any laws relating to terrorism or money laundering, including, without  limitation, the Patriot Act.  SECTION 4.33. EEA Financial Institution.  No Loan Party is an EEA Financial  Institution.  SECTION 4.34. No LLC Division.  Neither the Borrower, any Guarantor nor any  Person obligated to pay all or any part of any sums that are, or may become, due under the Loan  Documents has created or adopted a Plan of Division, or filed a Certificate of Division, or has  otherwise effectuated a LLC Division of the Borrowers, any Guarantor or such Person.  ARTICLE V  COVENANTS  The Borrower and Guarantors agree, jointly and severally, that, so long as any Lender has  any Revolver Commitment hereunder or any Obligation remains unpaid:   SECTION 5.01. Information.  The Borrower will deliver to the Administrative  Agent, who will then promptly deliver to each of the Lenders:  (a) as soon as available and in any event within 120 days after the end of each Fiscal Year, a consolidated balance sheet of the Borrower and its Consolidated  Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of  income, shareholders’ equity and cash flows for such Fiscal Year, all certified by an   independent public accountant of standing reasonably satisfactory to the Administrative  Agent, with such certification to be free of exceptions and qualifications (other than any  consistency qualification that may result from a change in the method used to prepare the  financial statements as to which such accountants concur);  (b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, consolidated balance sheet of the  Borrower and its Consolidated Subsidiaries as of the end of such Fiscal Quarter and the  related statement of income and statement of cash flows for such Fiscal Quarter and for  





 






  70  WBD (US) 57324867v5  the portion of the Fiscal Year ended at the end of such Fiscal Quarter, setting forth in  each case in comparative form the figures for the corresponding Fiscal Quarter and the  corresponding portion of the previous Fiscal Year, all certified (subject to normal year- end adjustments) as to fairness of presentation, GAAP and consistency by the chief  financial officer or an authorized officer of the Borrower;  (c) simultaneously with the delivery of each set of financial statements  referred to in clauses (a) and (b) above, a certificate, substantially in the form of  Exhibit H and with compliance calculations in form and content reasonably satisfactory  to the Administrative Agent (a “Compliance Certificate”), of the chief financial officers  or authorized officers of the Borrower (i) setting forth in reasonable detail the  calculations required to establish whether the Loan Parties were in compliance with the  requirements of Sections 5.07 and 5.09 on the date of such financial statements, (ii)  setting forth the identities of the respective Subsidiaries on the date of such financial  statements, if applicable, and (iii) stating whether any Default or Event of Default exists  on the date of such certificate and, if any Default or Event of Default then exists, setting  forth the details thereof and the action which the Loan Parties are taking or propose to  take with respect thereto;  (d) simultaneously with the delivery of each set of annual financial statements  referred to in paragraph (a) above, a statement of the firm of independent public  accountants which reported on such statements to the effect that nothing has come to their  attention to cause them to believe that any Default existed on the date of such financial  statements;  (e) promptly and in any event within 5 Domestic Business Days after the  Borrower’s president, chief executive officer, chief operating officer, chief financial  officer or treasurer becomes aware of the occurrence of any Default or Event of Default,  a certificate of any such authorized officer of the Borrower setting forth the details  thereof and the action which the Borrower is taking or proposes to take with respect  thereto;  (f) promptly after the same become publicly available, copies of all periodic  and other reports, proxy statements and other materials filed with the Securities and  Exchange Commission, or any Governmental Authority succeeding to any or all  functions of said Commission, or with any national securities exchange, or if any of the  capital stock of the Borrower is quoted on the Nasdaq Stock Market or listed or quoted on  the New York Stock Exchange or another securities exchange, distributed by the  Borrower to its shareholders generally, as the case may be;  (g) promptly upon becoming aware of the occurrence thereof, notice  (including the nature of the event and, when known, any action taken or threatened by the  Internal Revenue Service or the PBGC with respect thereto) of:  (i) any Reportable Event with respect to any Loan Party or any other  member of the Controlled Group;  





 






  71  WBD (US) 57324867v5  (ii) any Prohibited Transaction which could subject any Loan Party or  any other member of the Controlled Group to a civil penalty assessed pursuant to  Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code in  connection with any Plan, any Benefit Arrangement or any trust created  thereunder;  (iii) any assertion of material withdrawal liability with respect to any  Multiemployer Plan;   (iv) any partial or complete withdrawal from a Multiemployer Plan by  any Loan Party or any other member of the Controlled Group under Title IV of  ERISA (or assertion thereof), where such withdrawal is reasonably likely to result  in a Material Adverse Effect;  (v) any cessation of operations (by any Loan Party or any other  member of the Controlled Group) at a facility in the circumstances described in  Section 4062(e) of ERISA;  (vi) withdrawal by any Loan Party or any other member of the  Controlled Group from a Multiple Employer Plan;  (vii) a failure by any Loan Party or any other member of the Controlled  Group to make a payment to a Plan required to avoid imposition of a Lien under  Section 302(f) of ERISA; or   (viii) any change in the actuarial assumptions or funding methods used  for any Plan, where the effect of such change is to materially increase or  materially reduce the unfunded benefit liability or obligation to make periodic  contributions;  (h) promptly after receipt thereof, copies of (i) all notices received by any  Loan Party or any other member of the Controlled Group of the PBGC’s intent to  terminate any Plan administered or maintained by any Loan Party or any member of the  Controlled Group, or to have a trustee appointed to administer any such Plan; and (ii) at  the request of the Administrative Agent or any Lender each annual report (IRS Form  5500 series) and all accompanying schedules and the most recent actuarial reports  concerning each Plan;  (i) promptly upon the filing thereof, copies of any PBGC Form 500, or any  successor or equivalent form to PBGC Form 500, filed with the PBGC in connection with  the termination of any Plan;  (j) promptly after the Borrower knows of the commencement thereof, notice  of any litigation, dispute or proceeding (and any material development in respect of such  proceedings) involving a claim against a Loan Party and/or any Subsidiary of a Loan  Party for $2,000,000 or more or which if adversely determined would constitute a  Material Adverse Effect;   





 






72  WBD (US) 57324867v5  (k) from time to time such additional information regarding the financial position or business of the Borrower, its Subsidiaries, and each Loan Party as the  Administrative Agent, at the request of any Lender, may reasonably request; and  (l) promptly, upon any change in the Borrower’s Debt Rating, a certificate stating that the Borrower’s Debt Rating has changed and the new Debt Rating that is in  effect.  SECTION 5.02. Inspection of Property, Books and Records.  The Borrower will (i)  keep, and will cause each of its Subsidiaries to keep, proper books of record and account in  which full, true and correct entries in conformity with GAAP shall be made of all dealings and  transactions in relation to its business and activities that are required by GAAP to be so made;  (ii) permit, and will cause each Subsidiary of the Borrower and each Loan Party to permit, with reasonable prior notice which notice shall not be required in the case of an emergency, the Administrative Agent or its designee, at the expense of the Borrower and Loan Parties, to perform reasonable periodic field audits and investigations of the Borrower and the other Loan Parties, from time to time; and (iii) permit, and will cause each Subsidiary to permit, representatives of any Lender at such Lender’s expense prior to the occurrence of an Event of Default and at the Borrowers’ expense after the occurrence of an Event of Default to visit and inspect any of their respective properties, to examine and make abstracts from any of their respective books and records and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public accountants.  The Loan Parties agree to cooperate and assist in such visits and inspections, in each case at such reasonable times and as often as may reasonably be desired. SECTION 5.03. [Reserved].  SECTION 5.04. [Reserved].  SECTION 5.05. [Reserved].  SECTION 5.06. Debt.  The Borrower shall not, and shall not permit any of its  Subsidiaries or any other Loan Party to, at any time create, incur, assume or suffer to exist any  Debt, except:  (a) Debt under the Loan Documents, and any extension or renewals or replacements thereof, provided that the Refinancing Conditions are satisfied;  (b) Existing Debt as set forth on Schedule 4.26, and provided that the Refinancing Conditions are satisfied, any extension or renewals or replacements thereof;  (c) Capitalized leases and Debt secured by Purchase Money Security Interests not exceeding $15,000,000 in the aggregate at any one time;  (d) Debt of one Loan Party to another Loan Party which is subordinated in accordance with the provisions of Section 5.10;  (e) Any Hedge Transaction approved by the Agent; or 





 






73  WBD (US) 57324867v5  (f) Other Debt, including any Senior Notes issued after the Third Amendment Effective Date, in an aggregate outstanding amount not to exceed $200,000,000 at any  time.    SECTION 5.07. Maximum Leverage.  Borrower will maintain, as of the end of  each Fiscal Quarter, commencing with the Fiscal Quarter ending December 31, 2019, a Total  Leverage Ratio of no greater than Sixty-Five One Hundredths (0.65).  SECTION 5.08. Disposition of Assets.  The Borrower shall not, and shall not  permit any of its Subsidiaries or any other Loan Party to Dispose of, voluntarily or involuntarily,  any of its properties or assets, tangible or intangible (including Disposition of accounts, contract  rights, chattel paper, equipment or general intangibles with or without recourse or of Capital  Securities of a Subsidiary of such Loan Party), except:  (a) the sale of inventory in the ordinary course of business; (b) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of such Loan Party’s or such  Subsidiary's business;  (c) any sale, transfer or lease of assets by any Wholly Owned Subsidiary of such Loan Party to another Loan Party;  (d) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased within the parameters of  Section 5.21;   (e) any other sale, transfer or lease of assets, not specifically excepted pursuant to clauses (a) through (d) above; provided however, that the aggregate amount  of the book value of the assets subject to all such sales, transfers and leases under this  clause (e) shall not exceed $10,000,000; or  (f) any sale or disposition of Investments permitted under Section 5.12 and the making of any Restricted Payment permitted under Section 5.11; provided, however,  that any Disposition pursuant to clauses (a), (b), (d) and (e) above shall be for fair market  value.  SECTION 5.09. Interest Coverage Ratio.  The Borrower will maintain, as of the  end of each Fiscal Quarter, commencing with the Fiscal Quarter ending December 31, 2019, an  Interest Coverage Ratio of not less than 2.00 to 1.00.  The Interest Coverage Ratio shall be  calculated for the four (4) consecutive Fiscal Quarters ending on the applicable date of  determination.  SECTION 5.10. Loans or Advances.  No Loan Party or any Subsidiary of a Loan  Party shall make loans or advances to any Person except: (i)  employee advances to meet the  expenses of such employee for business purposes in the ordinary course of business; (ii) trade  credit extended on usual and customary terms in the ordinary course of business; (iii) loans,  investments or advances to the Borrower or any Guarantor that is a Consolidated Subsidiary;  provided, that all such Debt shall be unsecured and subordinated in right of payment to the  





 






74  WBD (US) 57324867v5  payment in full of the Obligations; (iv) loans and advances outstanding on the Closing Date and  set forth on Schedule 5.10; and (v) Investments permitted by Section 5.12.  SECTION 5.11. Restricted Payments.The Borrower shall not, and shall not permit  any of its Subsidiaries or any other Loan Party to, make or pay, or agree to become or remain  liable to make or pay, any Restricted Payment, except (i) dividends or other distributions payable  to another Loan Party (so long as such Loan Party is a Subsidiary of the Borrower), (ii) Permitted  Tax Distributions and (iii) dividends and distributions payable solely in shares of capital stock or  in options, warrants or other rights to acquire capital stock.  In addition to the Restricted  Payments permitted by the foregoing clauses (a)(i) through (a)(iii) of this Section 5.11, the  Borrower may make Restricted Payments in cash at any time and from time to time but no earlier  than five (5) Domestic Business Days after the Borrower shall have delivered to the  Administrative Agent (x) the financial statements required by Section 5.01(a) or 5.01(b), as  applicable, and (y) a dividend compliance certificate in the form of Exhibit J attached hereto (a  “Dividend Compliance Certificate”) demonstrating that, prior to and after giving effect to such  Restricted Payment:  (i) no Default or Event of Default shall have occurred and be continuing; and  (ii) the Borrower would be in compliance with the financial covenant set forth in Section 5.07 at all times.  SECTION 5.12. Investments.  No Loan Party or any Subsidiary of a Loan Party  shall make Investments in any Person except as permitted by Section 5.10 and except  Investments in (i) direct obligations of the United States Government maturing within one year,  or repurchase agreements and reverse repurchase agreements relating to marketable direct  obligations issued or unconditionally guaranteed by the United States or issued by any agency  thereof and backed by the full faith and credit of the United States maturing within 365 days  from the date of acquisition, (ii) demand deposits, time deposits or certificates of deposit  maturing within one year in commercial banks whose obligations are rated A-1, A or the  equivalent or better by S&P on the date of acquisition, (iii) commercial paper rated A-1 or the  equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s and in either case  maturing within twelve (12) months after the date of acquisition, (iv) municipal securities,  including auction rate securities and variable rate demand notes having a minimum of a long- term credit rating of A2 or A, or the equivalent, using the lowest credit rating by Moody's or  S&P, or with a short-term credit rating of A-1/P-2 or A-2/P-1, or the equivalent, using the lowest  credit rating by Moody's or S&P (issues with only one short-term credit rating must have a  minimum credit rating of A-1, P-1, F-1 or the equivalent), (v) Investments existing on the  Closing Date and set forth on Schedule 5.12 and (vi) funds invested exclusively in the  investments described in clauses (i) through (iv).    SECTION 5.13. Liens.  No Loan Party or any Subsidiary of a Loan Party will  create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it,  except:  (a) Liens existing on the date of this Agreement encumbering assets securing Debt outstanding on the date of this Agreement, in each case as described and in the  





 






75  WBD (US) 57324867v5  principal amounts set forth on Schedule 5.13 and any Lien arising out of the refinancing,  extension, renewal or refunding of any Debt as permitted under Section 5.06(b);  (b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable;  (c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, or to participate in any fund in connection with  workers’ compensation, unemployment insurance, old-age pensions or other social  security programs, other than any Lien imposed by ERISA;  (d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that are not yet due  and payable and Liens of landlords of real property arising by operation of law securing  obligations to pay lease payments that are not yet due and payable or in default;  (e) good faith pledges or deposits of no greater than $250,000 in the aggregate made in the ordinary course of business to secure performance of bids, tenders, contracts  (other than for the repayment of borrowed money) or leases, or to secure statutory  obligations, or surety, appeal, indemnity, performance or other similar bonds required in  the ordinary course of business;    (f) encumbrances consisting of zoning restrictions, easements or other restrictions on the use of real property, none of which materially impairs the use of such  property by Borrower in the operation of its business, and none of which is violated in  any material respect by existing or proposed restrictions on land use;  (g) any Lien on Margin Stock; (h) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any Governmental Authority or by any Person acting under  Governmental Authority; and  (i) Purchase Money Security Interests and Liens on property subject to capitalized leases, provided that the aggregate amount of loans and deferred payments  secured by such Purchase Money Security Interests and capitalized leases shall not  exceed $10,000,000 in the aggregate at any one time (excluding for the purposes of this  computation any loans or deferred payments secured by Liens described on Schedule  5.13);  (j) the following, (i) if the validity or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently conducted so long as levy  and execution thereon have been stayed and continue to be stayed or (ii) if a final  judgment is entered and such judgment is discharged within thirty (30) days of entry, and  in either case they do not, in the aggregate, materially impair the ability of any Loan  Party to perform the Obligations:  (i) claims or Liens for taxes, assessments or charges due and payable and subject to interest or penalty, provided that the applicable Loan  Party  





 






76  WBD (US) 57324867v5  maintains such reserves or other appropriate provisions as shall be required by  GAAP and pays all such taxes, assessments or charges forthwith upon the  commencement of proceedings to foreclose any such Lien;  (ii) claims, Liens or encumbrances upon, and defects of title to, real or personal property, including any attachment of personal or real property or other  legal process prior to adjudication of a dispute on the merits; or  (iii) claims or Liens of mechanics, materialmen, warehousemen, carriers, or other statutory nonconsensual Liens;  (k) Liens resulting from final judgments or orders (i) if the validity or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently  conducted so long as levy and execution thereon have been stayed and continue to be  stayed, or (ii) if a final judgment is entered and such judgment is discharged within sixty  (60) days of entry, and in either case they do not, in the aggregate, materially impair the ability of any Loan Party to perform the Obligations. (l) provided that such matters do not materially interfere with the present use of the Properties owned by the Borrower or any of its Subsidiaries, as the case may be,  such matters as an accurate survey would show;   (m) such other rights, liens, imperfections in or failures of title, charges, easements, leases, licenses, restrictions, encumbrances, encroachments and defects and  zoning, entitlement, conservation restriction and other land use and environmental  regulations by Governmental Authority, which, in each case, do not materially interfere  with the present use of the Properties owned by the Borrower or its Subsidiaries, as the  case may be; and  (n) Liens in favor of the Administrative Agent on Cash Collateral. SECTION 5.14. Maintenance of Existence, etc.  Each Loan Party shall, and shall  cause each Subsidiary of a Loan Party to, maintain its organizational existence and carry on its  business in substantially the same manner and in substantially the same line or lines of business  or line or lines of business reasonably related to the business now carried on and maintained,  except as otherwise expressly permitted by Section 5.16.    SECTION 5.15. Maintenance of Debt Rating.  The Borrower shall at all times  maintain a Debt Rating from a Rating Agency.  SECTION 5.16. Consolidations, Mergers and Acquisitions.    The Borrower shall not, and shall not permit any of its Material Subsidiaries to, dissolve,  liquidate or wind-up its affairs either in whole or in part or redeem or retire any shares of its own  Capital Securities through corporate or company reorganization (including by way of a LLC  Division), or become a party to any merger or consolidation, or make any Acquisition, provided  that:  





 






77  WBD (US) 57324867v5  (a) any Loan Party other than the Borrower may consolidate or merge into another Loan Party;  (b) any Loan Party may acquire, whether by purchase or by merger, (A) all of the Capital Securities of another Person or (B) substantially all of assets of another  Person or of a business or division of another Person (each a “Permitted Acquisition”);  provided that (i) the consideration paid by the Loan Parties for such Permitted  Acquisition together with all other Permitted Acquisitions made during the current Fiscal  Year under this clause (i) does not exceed $10,000,000, (ii) such Permitted Acquisition is  described on Schedule 5.16, or (iii) each of the following requirements is met:  (i) if the Loan Parties are acquiring the Capital Securities in such Person, such Person shall execute a Joinder Agreement pursuant to Section 5.27  on or before the date of such Permitted Acquisition;  (ii) the Borrower shall, and shall cause each such Person and its owners, as applicable, to comply with Section 5.27 on or before the date of such  Permitted Acquisition;  (iii) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and, if the Borrower shall  use any Advances to fund such Permitted Acquisition, the Borrower also shall  have delivered to the Administrative Agent written evidence of the approval of  the board of directors (or equivalent body) of such Person for such Permitted  Acquisition;  (iv) the business acquired, or the business conducted by the Person whose Capital Securities are being acquired, as applicable, shall be substantially  the same as one or more line or lines of business conducted by the Loan Parties;  (v) no Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;  (vi) the Borrower shall demonstrate that it shall be in compliance with the covenants contained in Sections 5.07 and 5.09 on a pro forma basis after  giving effect to such Permitted Acquisition (including in such computation Debt  or other liabilities assumed or incurred in connection with such Permitted  Acquisition but excluding income earned or expenses incurred by the Person,  business or assets to be acquired prior to the date of such Permitted Acquisition)  by delivering at least five (5) Business Days prior to such Permitted Acquisition a  certificate evidencing such compliance;  (vii) the aggregate consideration paid by the Loan Parties for all Permitted Acquisitions in any Fiscal Year shall not exceed $30,000,000; and  (viii) the Borrower shall deliver to the Agent at least five (5) Domestic Business Days before such Permitted Acquisition copies of any agreements  entered into or proposed to be entered into by such Loan Parties in connection  





 






  78  WBD (US) 57324867v5  with such Permitted Acquisition, as well as annual financial statements of such  Permitted Acquisition for a minimum of three (3) Fiscal Years, to the extent  available, immediately preceding the date of the proposed transaction.  SECTION 5.17. Use of Proceeds.  No portion of the proceeds of any Advance will  be used by the Borrower or any Subsidiary (a) in connection with, either directly or indirectly,  any tender offer for, or other acquisition of, stock of any corporation with a view towards  obtaining control of such other corporation, (b) directly or indirectly, for the purpose, whether  immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (c) for any  purpose in violation of any applicable Law.  Except as otherwise provided herein, the proceeds  of the Advances shall be used:  (i) to refinance existing indebtedness of the Borrower (including  indebtedness under the Existing Credit Agreement); (ii) for working capital and other lawful  corporate purposes including transaction costs and expenses associated with the consummation  of the transactions contemplated by this Agreement, (iii) to pay fees and expenses incurred in  connection with this Agreement, (iv) for the issuance of Letters of Credit, (v) to finance  Permitted Acquisitions and (vi) as Cash Collateral.  No part of the proceeds of any Advance will  be used, whether directly or indirectly, for any purpose that would violate any rule or regulation  of the Board of Governors of the Federal Reserve System, including Regulations T, U or X.  SECTION 5.18. Compliance with Laws; Payment of Taxes.  Each Loan Party will,  and will cause each Subsidiary of a Loan Party and each member of the Controlled Group to,  comply in all material respects with applicable Laws (including but not limited to ERISA,  Environmental Laws and the Patriot Act), regulations and similar requirements of governmental  authorities (including but not limited to PBGC), except where the necessity of such compliance  is being contested in good faith through appropriate proceedings diligently pursued, provided  that it shall not be deemed to be a violation of this Section 5.18 if any failure to comply with any  applicable Law would not reasonably be expected to result in a Material Adverse Effect.  Each  Loan Party will, and will cause each Subsidiary of a Loan Party to, pay promptly when due all  material taxes, assessments, governmental charges, and other obligations which, if unpaid, might  become a Lien (other than a Lien permitted by Section 5.13) against the property of a Loan Party  or any Subsidiary of a Loan Party, except liabilities being contested in good faith by appropriate  proceedings diligently pursued and against which, if requested by the Administrative Agent, the  Borrower shall have set up reserves in accordance with GAAP,  but only to the extent that failure  to discharge any such liabilities would not result in any additional liability which would  adversely affect to a material extent the financial condition of any Loan Party or Subsidiary of  any Loan Party provided that the Borrower shall, and shall cause each of the other Loan Parties  and their Subsidiaries to pay all such liabilities forthwith upon the commencement of  proceedings to foreclose any Lien which may have attached as security therefor.    SECTION 5.19. Insurance.  Each Loan Party will maintain, and will cause each  Subsidiary of a Loan Party to maintain (either in the name of such Loan Party or in such  Subsidiary’s own name), with financially sound and reputable insurance companies, insurance  on all its Property and other assets in at least such amounts and against at least such risks as are  usually insured against in the same general area by companies of established repute engaged in  the same or similar business consistent with prudent business practices, all as reasonably  determined by the Administrative Agent.  Upon request by the Administrative Agent, the  Borrower shall promptly furnish the Administrative Agent copies of all such insurance policies  or certificates evidencing such insurance and such other documents and evidence of insurance as  





 






  79  WBD (US) 57324867v5  the Administrative Agent shall request.  In the case of property losses, all insurance proceeds for  losses of greater than $5,000,000  shall be payable to the Administrative Agent for the benefit of  the Lenders unless (i) no Event of Default exists, and (ii) the Borrower within one hundred  eighty (180) days after receipt thereof, reinvests such proceeds to replace or restore such  property.  The Borrower shall notify the Administrative Agent promptly of any occurrence  causing a material loss and the estimated (or actual, if available) amount of such loss or decline.   Any monies received by the Agent constituting insurance proceeds shall be applied by the  Administrative Agent in accordance with Section 2.11(d).  SECTION 5.20. Change in Fiscal Year.  No Loan Party will make any significant  change in accounting treatment or reporting practices, except as required by GAAP or applicable  Law, or change its Fiscal Year without the consent of the Required Lenders.  SECTION 5.21. Maintenance of Property.  The Borrower shall, and shall cause  each of its Subsidiaries and each other Loan Party to, maintain in good repair, working order and  condition (ordinary wear and tear excepted) in accordance with the general practice of other  businesses of similar character and size, all of those properties and assets useful or reasonably  necessary to its business, and from time to time, the Borrower shall and shall cause each other  Loan Party to make or cause to be made all appropriate repairs, renewals or replacements thereof  in accordance with good industry practice provided that this Section shall not prevent the  Borrower or any Subsidiary from discontinuing the operation and the maintenance of any of its  Properties if such discontinuance is desirable in the conduct of its business and such  discontinuance is immaterial to the business of the Borrower or such Subsidiary.  SECTION 5.22. Environmental Notices.  Each Loan Party shall furnish to the  Lenders and the Administrative Agent written notice, promptly upon receipt of any  Environmental Notice, whether directed or issued to any Loan Party or relating or pertaining to  any prior owner, operator or occupant of any Property, which could reasonably be expected to  have a Material Adverse Effect.  SECTION 5.23. Environmental Matters.  No Loan Party will:  (a) conduct any  activity at a Property in violation of any Environmental Law or Environmental Authorization  except where noncompliance alone or in the aggregate could not reasonably be expected to have  a Material Adverse Effect; or (b) permit any Hazardous Materials to be present in, under or  emanating from or to, any Property, or any portion thereof, except in compliance with  Environmental Laws and Environmental Authorizations or where noncompliance, alone or in the  aggregate could not reasonably be expected to have a Material Adverse Effect.   SECTION 5.24. [Reserved].   SECTION 5.25. [Reserved].  SECTION 5.26. Transactions with Affiliates.  No Loan Party nor any Subsidiary of  a Loan Party shall enter into, or be a party to, any transaction with any Affiliate of a Loan Party  or such Subsidiary (which Affiliate is not a Loan Party or a Subsidiary of a Loan Party), except  for those transactions described on Schedule 5.26 or as permitted by law and in the ordinary  course of business and pursuant to reasonable terms which are no less favorable to the Loan  





 






80  WBD (US) 57324867v5  Party or such Subsidiary than would be obtained in a comparable arm’s length transaction with a  Person which is not an Affiliate.    SECTION 5.27. Joinder of Subsidiaries.  (a) The Loan Parties shall cause any Person which becomes a Material Subsidiary of a Loan Party after the Closing Date to become a party to, and agree to be  bound by the terms of, this Agreement and the other Loan Documents pursuant to a  Joinder Agreement, satisfactory to the Administrative Agent in all respects and executed  and delivered to the Administrative Agent within ten (10) Domestic Business Days after  the day on which such Person became a Material Subsidiary.  The Loan Parties shall also  cause the items specified in Section 3.01(c), (e), (f) and (i) to be delivered to the  Administrative Agent concurrently with the instrument referred to above, modified  appropriately to refer to such instrument and such Subsidiary.  (b) Once any Subsidiary becomes a party to this Agreement in accordance with Section 5.27(a), such Subsidiary thereafter shall remain a party to this Agreement  even if such Subsidiary ceases to be a Subsidiary; provided that if a Subsidiary ceases to  be a Subsidiary of the Borrower as a result of the Borrower’s transfer or sale of one  hundred percent (100%) of the capital stock of such Subsidiary in accordance with and to  the extent permitted by the terms of Section 5.16, the Administrative Agent and the  Lenders agree to release such Subsidiary from this Agreement.  SECTION 5.28. Plans and Benefit Arrangements.  The Loan Parties shall, and shall  cause each other member of the Controlled Group to, comply with ERISA, the Code and other  applicable Laws to the extent applicable to Plans and Benefit Arrangements except where such  failure, alone or in conjunction with any other failure, would not result in a Material Adverse  Effect.  Without limiting the generality of the foregoing, the Loan Parties shall cause all of their  Plans and all Plans maintained by any member of the Controlled Group to be funded in all  material respects in accordance with the minimum funding requirements of ERISA and shall  make, and cause each member of the Controlled Group to make, in a timely manner, all material  contributions due to Plans, Benefit Arrangements and Multiemployer Plans.  SECTION 5.29. Partnerships and Joint Ventures.  No Loan Party shall become a  general partner in any general or limited partnership, except that any Loan Party may be a  general partner in other Loan Parties, or a joint venturer in any joint venture.  SECTION 5.30. Plans and Benefit Arrangements.  The Borrower shall not, and  shall not permit any of its Subsidiaries or any other Loan Party to:  (a) fail to satisfy the minimum funding requirements of ERISA and the Code with respect to any Plan;  (b) request a minimum funding waiver from the Internal Revenue Service with respect to any Plan;  (c) engage in a Prohibited Transaction with any Plan, Benefit Arrangement or Multiemployer Plan which, alone or in conjunction with any other circumstances or set of  





 






81  WBD (US) 57324867v5  circumstances resulting in liability under ERISA, would constitute a Material Adverse  Effect;  (d) with respect to any Fiscal Year, permit (i) the accumulated benefit obligation of the Borrower as of the end of such Fiscal Year (calculated as the aggregate  actuarial present value of all benefit liabilities (whether or not vested) under all Plans  (including, for the avoidance of doubt, any supplemental Plans) in the aggregate, as  disclosed in the most recent actuarial report completed with respect to each respective  Plan as of the end of such Fiscal Year), to exceed (ii) the fair market value of the assets of  such Plans as of the end of such Fiscal Year by more than $30,000,000;  (e) fail to make when due any material contribution to any Multiemployer Plan that any Loan Party or any member of the Controlled Group may be required to  make under any agreement relating to such Multiemployer Plan, or any applicable Law  pertaining thereto;  (f) withdraw (completely or partially) from any Multiemployer Plan or withdraw (or be deemed under Section 4062(e) of ERISA to withdraw) from any  Multiple Employer Plan, where any such withdrawal is reasonably likely to result in a  Material Adverse Effect;  (g) terminate, or institute proceedings to terminate, any Plan, where such termination is reasonably likely to result in a Material Adverse Effect;  (h) make any amendment to any Plan with respect to which security is required under Section 307 of ERISA, where such failure is reasonably likely to result in  a Material Adverse Effect; or   (i) fail to give any and all notices and make all disclosures and governmental filings required under ERISA or the Code in respect of any Plan or Benefit Arrangement,  where such failure is reasonably likely to result in a Material Adverse Effect.  SECTION 5.31. No Modification of Management Agreement.  The Borrower shall  not, and shall not permit any of its Subsidiaries to, (i) waive or consent to any change in any  material covenant, any material condition or any material compliance by any Person with any  provision of the Management Agreement without providing prior written notice to the  Administrative Agent and each Lender, and if the effect of such waiver or consent could  reasonably be expected to be adverse in any material respect to the Administrative Agent, the  Lenders or any Loan Party (including, without limitation adverse to the liquidity of any Loan  Party), then the Borrower shall obtain the prior written approval of the Required Lenders to such  waiver, which approval shall not be unreasonably withheld, or (ii) amend the Management  Agreement without providing prior written notice to the Administrative Agent and each Lender,  and if the effect of an amendment could reasonably be expected to be adverse in any material  respect to the Agent, the Lenders or any Loan Party (including, without limitation, adverse to the  liquidity of any Loan Party), then the Borrower shall obtain the prior written approval of the  Required Lenders to such amendment, which approval shall not be unreasonably withheld.    





 






82  WBD (US) 57324867v5  SECTION 5.32. Modifications of Organizational Documents.  The Borrower shall  not, and shall not permit any Loan Party or other Subsidiary to, amend, supplement, restate or  otherwise modify its Organizational Documents or Operating Documents without providing at  least ten (10) Domestic Business Days’ prior written notice to the Administrative Agent and the  Lenders and, in the event such change would be materially adverse to the Lenders as determined  by the Administrative Agent in its reasonable discretion, obtaining the prior written consent of  the Required Lenders.  SECTION 5.33. [Reserved].  SECTION 5.34. Hedge Transactions.  The Loan Parties will not, and will not  permit any of their Subsidiaries to, enter into any Hedge Transaction, other than Hedge  Transactions entered into in the ordinary course of business to hedge or mitigate risks to which  the Loan Parties are exposed in the conduct of their business or the management of their  liabilities.  Solely for the avoidance of doubt, the Borrower acknowledges that a Hedge  Transaction entered into for speculative purposes or of a speculative nature (which shall be  deemed to include any Hedge Transaction under which any Loan Party is or may become  obliged to make any payment (i) in connection with the purchase by any third party of any  common stock or any Debt or (ii) as a result of changes in the market value of any common  stock or any Debt) is not a Hedge Transaction entered into in the ordinary course of business to  hedge or mitigate risks.  SECTION 5.35. Guaranties.  The Borrower shall not become liable in respect of  any Guarantee.  The Borrower shall not permit any of its Subsidiaries or any other Loan Party to,  at any time, directly or indirectly, become or be liable in respect of any Guarantee, except as  expressly permitted hereunder.  SECTION 5.36. Management Expenses.  The Borrower shall not, and shall not  permit any of its Subsidiaries to, be obligated to pay Management Expenses to any Person unless  the aggregate amount of such Management Expenses does not exceed the amount set forth in the  Management Agreement (subject to adjustment in accordance with the terms thereof as in effect  as of the Closing Date), but in no event in an amount greater than allowed by applicable Law.  SECTION 5.37.  Gas Purchase Agreements.  The Borrower and each Subsidiary of  the Borrower (a) shall comply with all rate case approvals entered into by the WVPSC with  respect to gas purchases, including exercising prudent gas practices, and (b) shall at all times use  commercially reasonable efforts to have in effect a fuel adjustment clause or a similar  mechanism approved by the WVPSC by which the rates charged by the Borrower and its  Subsidiaries are automatically adjusted to reflect variations in natural gas prices paid by the  Borrower or any of its Subsidiaries, as the case may be.    SECTION 5.38. Limitations on Modification and Prepayments of the Senior Notes.   No Loan Party or any Subsidiary of a Loan Party will: (a) amend or modify any of the terms of  the Senior Notes or the Note Purchase Agreements if such amendment or modification would  add or change any terms related to incurring or permitting to exist Debt or granting or permitting  to exist Liens in a manner adverse to the Borrower or any Subsidiary (other than amendments or  modifications to the Senior Notes and the Note Purchase Agreements pursuant to Section 17.1 of  any Note Purchase Agreement to conform the terms of such Note Purchase Agreement with the  





 






83  WBD (US) 57324867v5  terms of this Agreement), or shorten the final maturity or average life to maturity or require any  principal or interest payment to be made sooner than originally scheduled, unless such  amendment or modification has been approved by the Administrative Agent, or (b) make (or  give any notice with respect thereto) any voluntary or optional payment or prepayment or  redemption or acquisition for value of (including without limitation, by way of depositing money  or securities with the trustee with respect thereto before due for the purpose of paying when due),  refund, refinance or exchange of any Senior Note, unless such voluntary or optional payment or  prepayment or redemption or acquisition for value has been approved by the Administrative  Agent.  SECTION 5.39. No LLC Division.  The Borrower, any Guarantor or any Person  obligated to pay all or any part of any sums that are, or may become, due under the Loan  Documents shall not: (a) create or adopt a Plan of Division, or file a Certificate of Division, or  otherwise effectuate a LLC Division of any such entity or Person; (b) be liquidated, terminated,  dissolved, or merged or consolidated into another entity (including, in each case, without  limitation, pursuant to a LLC Division); (c) be divided into two or more Persons, including,  without limitation, becoming a Divided LLC (whether or not the original Person survives such  division); (d) be created, or reorganized into, one or more series pursuant to a LLC Division or  otherwise; or (e) fail or cease to be in good standing in (i) with respect to the Borrower, the state  of its incorporation or organization, or (ii) with respect to Borrower, any Guarantor or such other  Person, any other jurisdiction in which the Borrower, any Guarantor or such Person is required to  be registered and remain in good standing under applicable law.  ARTICLE VI  DEFAULTS  SECTION 6.01. Events of Default.  If one or more of the following events (“Events  of Default”) shall have occurred and be continuing:   (a) the Borrower shall fail to pay when due any principal of any Advance (including, without limitation, any Advance or portion thereof to be repaid pursuant to  Section 2.11) or shall fail to pay when due any Reimbursement Obligation with respect to  any Letter of Credit or shall fail to pay any interest on any Advance within three  Domestic Business Days after such interest shall become due, or any Loan Party shall fail  to pay any fee or other amount payable hereunder within three (3) Domestic Business  Days after such fee or other amount becomes due; or  (b) any Loan Party shall fail to observe or perform any covenant contained in (i) Sections 2.15, 5.02(ii) and 5.02(iii), 5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.14, 5.16, 5.26, 5.31, 5.32, 5.34 or (ii) Sections 5.01(e), 5.12, 5.13 and 5.35, and such default shall continue unremedied for a period of ten (10) Domestic Business Days; or (c) any Loan Party shall fail to observe or perform any covenant or agreement contained or incorporated by reference in this Agreement (other than those covered by  clause (a) or (b) above) or any other Loan Document; provided that such failure continues  for fifteen (15) Domestic Business Days after the earlier of (i) the first day on which the  Borrower has knowledge of such failure or (ii) written notice thereof has been given to  the Borrower by the Administrative Agent at the request of any Lender, provided that if  





 






84  WBD (US) 57324867v5  such default is not capable of remedy within such fifteen (15) Domestic Business Day  period, such fifteen (15) Domestic Business Day period shall be extended for an  additional thirty (30) Domestic Business Days so long as (i) the default is subject to cure,  (ii) the Loan Parties are diligently and continuously proceeding to cure such default, and (iii) the additional cure period could not reasonably be expected to have a Material Adverse Effect; or (d) any representation or warranty made (or deemed made pursuant to Section 3.02) by the Loan Parties in Article IV of this Agreement or any other Loan Document or  in any financial statement, material certificate or other material document or report  delivered pursuant to this Agreement shall prove to have been untrue or misleading in  any material respect when made (or deemed made pursuant to Section 3.02), provided  that such representation or warranty shall not constitute an Event of Default if such  conditions or circumstances are (i) subject to cure, and (ii) the facts or conditions giving  rise to such breach of the representation or warranty are cured in such a manner as to  eliminate such breach within thirty (30) days after the Borrower has knowledge of such  breach; or  (e) any event or condition shall occur which results in a default or event of default under the terms of any other agreement involving borrowed money or the  extension of credit or any other Debt under which any Loan Party or Subsidiary of any  Loan Party may be obligated as a borrower or guarantor of at least $15,000,000 in the  aggregate, and such breach, default or event of default consists of the failure to pay  (beyond any period of grace permitted with respect thereto, whether waived or not) any  Debt when due (whether at stated maturity, by acceleration or otherwise) or if such  breach or default permits or causes the acceleration of any Debt (whether or not such  right shall have been waived) or the termination of any commitment to lend, or any Loan  Party or any Subsidiary of any Loan Party shall become obligated to purchase or repay  any Debt before its regular maturity or before its regularly scheduled dates of payment in  an aggregate outstanding principal amount of at least $15,000,000 or one or more Persons  have the right to require any Loan Party or any Subsidiary of any Loan Party so to  purchase or prepay such Debt; or  (f) [Reserved]; or (g) any Loan Party or any Subsidiary of a Loan Party shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with  respect to itself or its debts under any Debtor Relief Law now or hereafter in effect or  seeking the appointment of a trustee, receiver, liquidator, administrator, custodian or  other similar official of it or any substantial part of its property, or shall consent to any  such relief or to the appointment of or taking possession by any such official in an  involuntary case or other proceeding commenced against it, or shall make a general  assignment for the benefit of creditors, or shall fail generally, or shall admit in writing its  inability, to pay its debts as they become due, or shall take any corporate action to  authorize any of the foregoing; or  (h) an involuntary case or other proceeding shall be commenced against any Loan Party or any Subsidiary of a Loan Party seeking liquidation, reorganization or other  





 






85  WBD (US) 57324867v5  relief with respect to it or its debts under any Debtor Relief Law now or hereafter in  effect or seeking the appointment of a trustee, receiver, liquidator, administrator,  custodian or other similar official of it or any substantial part of its property, and such  involuntary case or other proceeding shall remain undismissed and unstayed for a period  of thirty (30) days; or an order for relief shall be entered against any Loan Party or any  Subsidiary of a Loan Party under the federal Bankruptcy laws as now or hereafter in  effect; or  (i) except as would not reasonably be expected to result in a Material Adverse Effect, any Loan Party or any member of the Controlled Group shall fail to pay when due  any material amount which it shall have become liable to pay to the PBGC or to a Plan  under Title IV of ERISA; or notice of intent to terminate a Plan or Plans shall be filed  under Title IV of ERISA by any Loan Party, any member of the Controlled Group, any  plan administrator or any combination of the foregoing; or the PBGC shall institute  proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to  administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any  such Plan or Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding  shall not have been dismissed within 30 days thereafter; or a condition shall exist by  reason of which the PBGC would be entitled to obtain a decree adjudicating that any such  Plan or Plans must be terminated; or  (j) one or more judgments or orders for the payment of money in an aggregate amount in excess of $15,000,000 shall be rendered against any one or more of  the Loan Parties and such judgments or orders shall continue unsatisfied and unstayed for  a period of sixty (60) days; or  (k) any Loan Party or Subsidiary of a Loan Party ceases to conduct its business as contemplated, except as expressly permitted under Section 5.16, or any Loan  Party or Subsidiary of a Loan Party is enjoined, restrained or in any way prevented by  court order from conducting all or any material part of its business and such injunction,  restraint or other preventive order is not dismissed within thirty (30) days after the entry  thereof; or  (l) there shall occur any material uninsured damage to or loss, theft or destruction of any of the properties or assets of any Loan Party or any of their  Subsidiaries in excess of $7,500,000 or any of the Loan Parties’ or any of their  Subsidiaries’ assets are attached, seized, levied upon or subjected to a writ or distress  warrant; or such come within the possession of any receiver, trustee, custodian or  assignee for the benefit of creditors and the same is not cured within thirty (30) days  thereafter; or  (m) a notice of Lien or assessment in excess of $7,500,000 which is not permitted by Section 5.13 is filed of record with respect to all or any part of any of the  Loan Parties’ or any of their Subsidiaries' assets by any Governmental Authority or any  taxes or debts owing at any time or times hereafter to any one of these becomes payable  and the same is not paid within thirty (30) days after the same becomes payable; or  





 






86  WBD (US) 57324867v5  (n) any Loan Party or any Subsidiary of a Loan Party ceases to be solvent or admits in writing its inability to pay its debts as they mature; or  (o) (i) any of the Guarantors shall fail to pay when due any Guaranteed Obligations (after giving effect to any applicable grace period) or shall fail to pay any fee  or other amount payable hereunder within three (3) Domestic Business Days after  becoming due (after giving effect to any applicable grace periods); or (ii) any Guarantor  shall disaffirm, contest or deny the enforceability or validity of Article X;  (p) any of the following occurs: (i) any of the Loan Documents shall cease to be legal, valid and binding agreements enforceable against the party executing the same  or such party's successors and assigns (as permitted under the Loan Documents) in  accordance with the respective terms thereof or (ii) any of the Loan Documents shall in  any way be terminated (except in accordance with its terms) or become or be declared  ineffective or inoperative or shall be repudiated or by any Loan Party or (iii) any Loan  Party shall (or shall attempt to) disaffirm, contest or deny the enforceability or validity of  any Loan Document; or  (q) the Borrower, any Guarantor or any Person obligated to pay all or any part of any sums that are, or may become, due under the Loan Documents shall: (i) create or  adopt a Plan of Division, or file a Certificate of Division, or otherwise effectuate a LLC  Division of any such entity or Person; (ii) be liquidated, terminated, dissolved, or merged  or consolidated into another entity (including, in each case, without limitation, pursuant  to a LLC Division); (iii) be divided into two or more Persons, including, without  limitation, becoming a Divided LLC (whether or not the original Person survives such  division); or (iv) be created, or reorganized into, one or more series pursuant to a LLC  Division or otherwise;  then, and in every such event, the Administrative Agent shall (i) if requested by the Required  Lenders, by notice to the Borrower terminate the Revolver Commitments and they shall  thereupon terminate; (ii) if requested by the Swing Line Lender, by notice to the Borrower,  terminate the Swing Line facility set forth in Section 2.01(b); (iii) if requested by the Required  Lenders, by notice to the Letter of Credit Issuer, instruct the Letter of Credit Issuer to declare an  Event of Default under the Letter of Credit Application Agreements; and (iv) if requested by the  Required Lenders, by notice to the Borrower declare the Notes (together with accrued interest  thereon) and all other amounts payable hereunder and under the other Loan Documents to be,  and the Notes (together with all accrued interest thereon) and all other amounts payable  hereunder and under the other Loan Documents shall thereupon become, immediately due and  payable without presentment, demand, protest or other notice of any kind, all of which are  hereby waived by the Loan Parties; provided that if any Event of Default specified in clause (g)  or (h) above occurs with respect to any Loan Party or any Subsidiary of a Loan Party, without  any notice to any Loan Party or any other act by the Administrative Agent or the Lenders, the  Revolver Commitments shall thereupon automatically terminate and the Swing Line facility set  forth in Section 2.01(b) shall thereupon automatically terminate and the Notes, including without  limitation the Swing Advance Note, (together with accrued interest thereon) and all other  amounts payable hereunder and under the other Loan Documents shall automatically become  immediately due and payable without presentment, demand, protest or other notice of any kind,  all of which are hereby waived by the Loan Parties.  Notwithstanding the foregoing, the  





 






  87  WBD (US) 57324867v5  Administrative Agent shall have available to it all rights and remedies provided under the Loan  Documents and in addition thereto, all other rights and remedies at law or equity, and the  Administrative Agent shall exercise any one or all of them at the request of the Required  Lenders.  SECTION 6.02. Notice of Default.  The Administrative Agent shall give notice to  the Borrower of any Default under Section 6.01(c) promptly upon being requested to do so by  any Lender and shall thereupon notify all the Lenders thereof.  SECTION 6.03. Cash Cover.  If any Event of Default shall have occurred and be  continuing, the Borrower shall, if requested by the Administrative Agent and the Letter of Credit  Issuer, pay to the Administrative Agent, for the benefit of the Lenders and the Letter of Credit  Issuer an amount in immediately available funds (which funds shall be held as collateral pursuant  to arrangements satisfactory to the Administrative Agent) equal to 103% of the aggregate  Undrawn Amounts available under the Letters of Credit, provided that, if any Event of Default  specified in clause (g) or (h) above occurs, the Borrower shall be obligated to pay such amount to  the Administrative Agent forthwith without any notice to the Borrower or any other act by the  Administrative Agent.  The Administrative Agent shall have exclusive dominion and control,  including the exclusive right of withdrawal, over such account.  Moneys in such account shall be  applied by the Administrative Agent to reimburse the Letter of Credit Issuer for Reimbursement  Obligations for which it has not been reimbursed and, to the extent not so applied, shall be held  for the satisfaction of the reimbursement obligations of the Borrower for the portion of the Letter  of Credit Obligations relating to Letters of Credit issued for the account of the Borrower at such  time or, if the maturity of the Advances has been accelerated, be applied to satisfy other  obligations of such Borrower under this Agreement.  SECTION 6.04. Allocation of Proceeds.  If an Event of Default has occurred and  not been waived, and the maturity of the Notes has been accelerated pursuant to this Article VI,  all payments received by the Administrative Agent hereunder or under the other Loan  Documents, in respect of any principal of or interest on the Obligations or any other amounts  payable by the Borrower or any other Loan Party hereunder or under the other Loan Documents,  shall be applied by the Administrative Agent in the following order:  (a) To payment of that portion of the Obligations constituting fees,  indemnities, Credit Party Expenses and other amounts (including fees, charges and  disbursements of counsel to the Administrative Agent and amounts payable under Article  VIII and Section 2.12) payable to the Administrative Agent in its capacity as such; and  then  (b) To payment of that portion of the Obligations constituting indemnities,  Credit Party Expenses and other amounts (other than principal, interest and fees) payable  to the Lenders and the Letter of Credit Issuer (including fees, charges and disbursements  of counsel to the respective Lenders and the Letter of Credit Issuer and amounts payable  under Article VIII and Section 2.12), ratably among them in proportion to the amounts  described in this clause payable to them; and then  





 






88  WBD (US) 57324867v5  (c) To the extent that Swing Advances have not been refinanced by a Revolver Advance, payment to the Swing Line Lender of that portion of the Obligations  constituting accrued and unpaid interest on the Swing Advances; and then  (d) To payment of that portion of the Obligations constituting accrued and unpaid interest on the Advances and other Obligations, and fees (including unused  commitment fees, Letter of Credit Fees and Facing Fees), ratably among the Lenders and  the Letter of Credit Issuer in proportion to the respective amounts described in this clause  payable to them; and then  (e) To the extent that Swing Advances have not been refinanced by a Revolver Advance, to payment to the Swing Line Lender of that portion of the  Obligations constituting unpaid principal of the Swing Advances; and then  (f) To payment of that portion of the Obligations constituting unpaid principal of the Advances and Reimbursement Obligations, ratably among the Lenders and the  Letter of Credit Issuer in proportion to the respective amounts described in this clause  held by them; and then  (g) To the Administrative Agent for the account of the Letter of Credit Issuer (for the benefit of the Letter of Credit Issuer and the Lenders), in respect of outstanding  Letters of Credit pursuant to Section 6.03; and then  (h) To payment of all other Obligations, ratably among the Letter of Credit Issuer and the Lenders in proportion to the respective amounts held by them; and then  (i) The balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Loan Parties or as otherwise required by law.  Subject to Article XI, amounts used to Cash Collateralize the aggregate Undrawn Amount of  Letters of Credit pursuant to Section 6.04(g) 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.  ARTICLE VII  THE ADMINISTRATIVE AGENT  SECTION 7.01. Appointment and Authority.  Each of the Lenders and the Letter of  Credit Issuer hereby irrevocably appoints Truist Bank 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.  Except as provided in Section 7.06, (a) the provisions of this  Article are solely for the benefit of the Administrative Agent, the Lenders and the Letter of  Credit Issuer, and (b)  neither the Borrower nor any other Loan Party shall have rights as a third  party beneficiary of any of such provisions.  It is understood and agreed that the use of the term  “agent” herein or in any other Loan Documents (or any other similar term) with reference to the  





 






89  WBD (US) 57324867v5  Administrative Agent is not intended to connote any fiduciary or other implied (or express)  obligations arising under agency doctrine of any applicable law. Instead such term is used as a  matter of market custom, and is intended to create or reflect only an administrative relationship  between contracting parties.  SECTION 7.02. 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,  own securities of, act as the financial advisor or in any other advisory capacity for, and generally  engage in any kind of business with, the Borrower or any Subsidiary or other Affiliate thereof as  if such Person were not the Administrative Agent hereunder and without any duty to account  therefor to the Lenders.    SECTION 7.03. Exculpatory Provisions.  The Administrative Agent shall not have  any duties or obligations except those expressly set forth herein and in the other Loan  Documents, and its duties hereunder shall be administrative in nature.  Without limiting the  generality of the foregoing, the Administrative Agent:  (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;  (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated  hereby or by the other Loan Documents that the Administrative Agent is required to  exercise as directed in writing by the 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  (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose,  any information relating to the Borrower or any of its Affiliates that is communicated to  or obtained by the Person serving as the Administrative Agent or any of its Affiliates in  any capacity.  The Administrative Agent shall not be liable for any action taken or not taken by it (i)  with the consent or at the request of the Required Lenders (or such other number or percentage  of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith  shall be necessary, under the circumstances as provided in Section 9.05 and Article VI), or (ii) in  the absence of its own gross negligence or willful misconduct as determined by a court of  competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be  





 






90  WBD (US) 57324867v5  deemed not to have knowledge of any Default unless and until notice describing such Default is  given to the Administrative Agent in writing by the Borrower, a Lender or the Letter of Credit  Issuer.  The Administrative Agent shall not be responsible for or have any duty to ascertain or  inquire into (i) any statement, warranty or representation made in or in connection with this  Agreement or any other Loan Document, (ii) the contents of any certificate, report or other  document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the  performance or observance of any of the covenants, agreements or other terms or conditions set  forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,  effectiveness or genuineness of this Agreement, any other Loan Document or any other  agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III  or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to  the Administrative Agent.  SECTION 7.04. Reliance by Administrative Agent.  The Administrative Agent  shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice,  request, certificate, consent, statement, instrument, document or other writing (including any  electronic message, Internet or intranet website posting or other distribution) believed by it to be  genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The  Administrative Agent also may rely upon any statement made to it orally or by telephone and  believed by it to have been made by the proper Person, and shall not incur any liability for  relying thereon.  In determining compliance with any condition hereunder to the making of an  Advance, 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 Letter of Credit Issuer, the Administrative  Agent may presume that such condition is satisfactory to such Lender or the Letter of Credit  Issuer unless the Administrative Agent shall have received notice to the contrary from such  Lender or the Letter of Credit Issuer prior to the making of such Advance or the issuance of such  Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel  for the Borrower), independent accountants and other experts selected by it, and shall not be  liable for any action taken or not taken by it in accordance with the advice of any such counsel,  accountants or experts.  SECTION 7.05. Delegation of Duties.  The Administrative Agent may perform any  and all of its duties and exercise its rights and powers hereunder or under any other Loan  Document by or through any one or more sub-agents appointed by the Administrative Agent.   The Administrative Agent and any such sub-agent may perform any and all of its duties and  exercise its rights and powers by or through their respective Related Parties.  The exculpatory  provisions of this Article shall apply to any such sub-agent and to the Related Parties of the  Administrative Agent and any such sub-agent, 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.  SECTION 7.06. Resignation of Administrative Agent.  The Administrative Agent  may at any time give notice of its resignation to the Lenders and the Borrower.  Upon receipt of  





 






91  WBD (US) 57324867v5  any such notice of resignation, the Required Lenders shall have the right, subject to the  Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed) so  long as no Event of Default is continuing, to appoint a successor, which shall be a bank with an  office in the United States of America, or an Affiliate of any such bank with an office in the  United States of America.  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, then the retiring Administrative Agent may  on behalf of the Lenders, subject to the Borrower’s consent (such consent not to be unreasonably  withheld, conditioned or delayed) so long as no Event of Default is continuing, appoint a  successor Administrative Agent meeting the qualifications set forth above provided that if the  Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has  accepted such appointment, then such resignation shall nonetheless become effective in  accordance with such notice and (1) the retiring Administrative Agent shall be discharged from  its duties and obligations hereunder and under the other Loan Documents (except that in the case  of any collateral security held by the Administrative Agent on behalf of the Lenders under any of  the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral  security until such time as a successor Administrative Agent is appointed) and (2) all payments,  communications and determinations provided to be made by, to or through the Administrative  Agent shall instead be made by, to or through a Lender, as appointed by the Required Lenders,   to each other Lender directly, until such time as the Required Lenders and the Borrower, as  applicable, appoint a successor Administrative Agent as provided for above in this paragraph.   Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such  successor shall succeed to and become vested with all of the rights, powers, privileges and duties  of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be  discharged from all of its duties and obligations hereunder or under the other Loan Documents  (if not already discharged therefrom as provided above in this paragraph).  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 Administrative Agent’s resignation hereunder and under the other Loan Documents, the  provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring  Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions  taken or omitted to be taken by any of them while the retiring Administrative Agent was acting  as Administrative Agent.  SECTION 7.07. Non-Reliance on Administrative Agent and Other Lenders.  Each  Lender and the Letter of Credit Issuer acknowledges that it has, independently and without  reliance upon the Administrative Agent or any other Lender or any of their Related Parties and  based on such documents and information as it has deemed appropriate, made its own credit  analysis and decision to enter into this Agreement.  Each Lender and the Letter of Credit Issuer  also acknowledges that it will, independently and without reliance upon the Administrative  Agent or any other Lender or any of their Related Parties and based on such documents and  information as it shall from time to time deem appropriate, continue to make its own decisions in  taking or not taking action under or based upon this Agreement, any other Loan Document or  any related agreement or any document furnished hereunder or thereunder.  SECTION 7.08. No Other Duties, etc.  Anything herein to the contrary  notwithstanding, none of the Lead Arranger or any other arranger or agent listed on the cover  page hereof shall have any powers, duties or responsibilities under this Agreement or any of the  





 






92  WBD (US) 57324867v5  other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a  Lender or the Letter of Credit Issuer hereunder.  SECTION 7.09. Other Agents.  The Borrower and each Lender hereby  acknowledges that any Lender designated as an “Agent” on the signature pages hereof (other  than the Administrative Agent) shall not have any obligations, duties or liabilities hereunder  other than in its capacity as a Lender.   SECTION 7.10. Guaranty Matters.  Subject to the provisions of Section 9.05, each  Lender authorizes and directs the Administrative Agent to enter into the Loan Documents (other  than this Agreement), and to enter into any intercreditor or similar agreement consistent with the  provisions of this Agreement, on behalf of and for the benefit of the Lenders.  Each Lender  hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree,  that any action taken by the Administrative Agent in accordance with the provisions of this  Agreement or the Loan Documents, and the exercise by the Administrative Agent of the powers  set forth herein or therein, together with such other powers as are reasonably incidental thereto,  shall be authorized and binding upon all Lenders.  Each of the Lenders and the Letter of Credit  Issuer irrevocably authorize the Administrative Agent to release any Guarantor from its  obligations under the Loan Documents if such Person ceases to be a Subsidiary as a result of a  transaction permitted hereunder.  Upon request by the Administrative Agent at any time, the  Required Lenders will confirm in writing the Administrative Agent’s authority to release any  Guarantor from its obligations under the Loan Documents pursuant to this Section 7.10.    SECTION 7.11. Administrative Agent May File Proofs of Claim.  In case of the  pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding  relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any  Advance or Letter of Credit Obligation shall then be due and payable as herein expressed or by  declaration or otherwise and irrespective of whether the Administrative Agent shall have made  any demand on any Borrower) shall be entitled and empowered, by intervention in such  proceeding or otherwise:  (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Advances, Letter of Credit Obligations and all other  Obligations that are owing and unpaid and to file such other documents as may be  necessary or advisable in order to have the claims of the Lenders, the Letter of Credit  Issuer and the Administrative Agent (including any claim for the reasonable  compensation, expenses, disbursements and advances of the Lenders, the Letter of Credit  Issuer and the Administrative Agent and their respective agents and counsel and all other  amounts due the Lenders, the Letter of Credit Issuer and the Administrative Agent under  Sections 2.07 and 9.03) allowed in such judicial proceeding; and  (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee,  trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is  hereby authorized by each Lender and the Letter of Credit Issuer to make such payments  to the Administrative Agent and, if the Administrative Agent shall consent to the making  of such payments directly to the Lenders and the Letter of Credit Issuer, to pay to the  Administrative Agent any amount due for the reasonable compensation, expenses,  





 






93  WBD (US) 57324867v5  disbursements and advances of the Administrative Agent and its agents and counsel, and  any other amounts due the Administrative Agent under Sections 2.07 and 9.03.  Nothing contained herein shall be deemed to authorize the Administrative Agent to  authorize or consent to or accept or adopt on behalf of any Lender or the Letter of Credit Issuer  any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or  the rights of any Lender or the Letter of Credit Issuer or to authorize the Administrative Agent to  vote in respect of the claim of any Lender or the Letter of Credit Issuer or in any such  proceeding.  SECTION 7.12. Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a  Lender party hereto to the date such Person ceases being a Lender party hereto, for the  benefit of, the Administrative Agent and the Lead Arranger and their respective  Affiliates, 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 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Plans  in connection with the Advances, the Letters of Credit or the Revolver  Commitments,  (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 Advances, the Letters of Credit, the Revolver Commitments and this  Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B)  such Qualified Professional Asset Manager made the investment decision on  behalf of such Lender to enter into, participate in, administer and perform the  Advances, the Letters of Credit, the Revolver Commitments and this Agreement,  (C) the entrance into, participation in, administration of and performance of the Advances, the Letters of Credit, the Revolver Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Letters of Credit, the Revolver Commitments and this Agreement, or 





 






94  WBD (US) 57324867v5  (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 sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation,  warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause  (a), such Lender further (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, for the benefit of,  the Administrative Agent and the Lead Arranger and their respective Affiliates, and not,  for the avoidance of doubt, to or for the benefit of any Borrower or any other Loan Party,  that:  (i) none of the Administrative Agent or Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender  (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 to hereto or thereto),  (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and  performance of the Advances, the Letters of Credit, the Revolver Commitments  and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21)  and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other  person that holds, or has under management or control, total assets of at least $50  million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E)  (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and  performance of the Advances, the Letters of Credit, the Revolver Commitments  and this Agreement is capable of evaluating investment risks independently, both  in general and with regard to particular transactions and investment strategies  (including in respect of the Obligations),  (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and  performance of the Advances, the Letters of Credit, the Revolver Commitments  and this Agreement is a fiduciary under ERISA or the Code, or both, with respect  to the Advances, the Letters of Credit, the Revolver Commitments and this  Agreement and is responsible for exercising independent judgment in evaluating  the transactions hereunder, and  (v) no fee or other compensation is being paid directly to the Administrative Agent or the Lead Arranger or any of their respective Affiliates  for investment advice (as opposed to other services) in connection with the  Advances, the Letters of Credit, the Revolver Commitments or this Agreement.  





 






95  WBD (US) 57324867v5  (c) The Administrative Agent and the Lead Arranger hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice,  or to give advice in a fiduciary capacity, in connection with the transactions contemplated  hereby, and that such Person has a financial interest in the transactions contemplated  hereby in that such Person or an Affiliate thereof (i) may receive interest or other  payments with respect to the Advances, the Letters of Credit, the Revolver Commitments  and this Agreement, (ii) may recognize a gain if it extended the Advances, the Letters of  Credit or the Revolver Commitments for an amount less than the amount being paid for  an interest in the Advances, the Letters of Credit or the Revolver Commitments by such  Lender or (iii) may receive fees or other payments in connection with the transactions  contemplated hereby, the Loan Documents or otherwise, including structuring fees,  commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking  fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum  usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees,  amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage  or other early termination fees or fees similar to the foregoing.  ARTICLE VIII  CHANGE IN CIRCUMSTANCES; COMPENSATION  SECTION 8.01. Inability to Determine Interest Rates; Benchmark Replacement  Setting.  (a) Inability to Determine SOFR.  Subject to paragraphs (b) through and (f) below, if, prior to the commencement of any Interest Period for any Adjusted Term SOFR  Borrowing or Term SOFR Index Rate Borrowing (or at any time, with respect to any Adjusted  Daily Simple SOFR Borrowing):  (i) the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that “Adjusted Term SOFR”  “Term SOFR Index Rate” or “Adjusted Daily Simple SOFR” cannot be determined  pursuant to the definition thereof, or   (ii) the Administrative Agent shall have received notice from the Required Lenders that Adjusted Term SOFR or the Term SOFR Index Rate for such  Interest Period or Adjusted Daily Simple SOFR will not adequately and fairly reflect  the cost to such Lenders of making, funding or maintaining their SOFR Borrowings for  such Interest Period (if applicable),  then the Administrative Agent shall give written notice thereof (or telephonic notice, promptly  confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter.    Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders  to make SOFR Advances, and any right of the Borrower to continue SOFR Borrowings or to  convert Base Rate Borrowings to SOFR Borrowings, shall be suspended (to the extent of the  affected SOFR Borrowings or affected Interest Periods) until the Administrative Agent revokes  such notice.  Upon receipt of such notice, (i) the Borrower may revoke any pending request for a  borrowing of, conversion to or continuation of SOFR Borrowings (to the extent of the affected  SOFR Borrowings or affected Interest Periods) or, failing that, the Borrower will be deemed to  





 






96  WBD (US) 57324867v5  have converted any such request into a request for a Borrowing of or conversion to Base Rate  Borrowings in the amount specified therein and (ii) any outstanding affected SOFR Borrowings  will be deemed to have been converted into Base Rate Borrowings at the end of the applicable  Interest Period.  Upon any such conversion, the Borrower shall also pay accrued interest on the  amount so converted, together with any additional amounts required pursuant to Section 8.05.   Subject to paragraphs (b) through (f) below, if the Administrative Agent determines (which  determination shall be conclusive and binding absent manifest error) that “Adjusted Term  SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate  on Base Rate Borrowings shall be determined by the Administrative Agent without reference to  clause (iii) of the definition of “Base Rate” until the Administrative Agent revokes such  determination.  (b) Benchmark Replacement.  Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related  Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark,  then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the  definition of “Benchmark Replacement” for such Benchmark Replacement Date, such  Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any  Loan Document in respect of such Benchmark setting and subsequent Benchmark settings  without any amendment to, or further action or consent of any other party to, this Agreement or  any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with  clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement  Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and  under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth  (5th) Domestic Business Day after the date notice of such Benchmark Replacement is provided  to the Lenders without any amendment to, or further action or consent of any other party to, this  Agreement or any other Loan Document so long as the Administrative Agent has not received,  by such time, written notice of objection to such Benchmark Replacement from Lenders  comprising the Required Lenders.   If the Benchmark Replacement is Adjusted Daily Simple  SOFR, all interest payments will be payable on each Interest Payment Date.   (c) Benchmark Replacement Conforming Changes.  In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the  Administrative Agent will have the right to make Conforming Changes from time to time 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.  (d) Notices; Standards for Decisions and Determinations.  The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any  Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection  with the use, administration, adoption or implementation of a Benchmark Replacement.  The  Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor  of a Benchmark pursuant to Section 8.01(e) and (y) the commencement of any Benchmark  Unavailability Period.  Any determination, decision or election that may be made by the  Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section  8.01, including any determination with respect to a tenor, rate or adjustment or of the occurrence  or non-occurrence of an event, circumstance or date and any decision to take or refrain from  





 






97  WBD (US) 57324867v5  taking any action or any selection, will be conclusive and binding absent manifest error and may  be made in its or their sole discretion and without consent from any other party to this  Agreement or any other Loan Document, except, in each case, as expressly required pursuant to  this Section 8.01.  (e) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the  implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate  (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not  displayed on a screen or other information service that publishes such rate from time to time as  selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor  for the administrator of such Benchmark has provided a public statement or publication of  information announcing that any tenor for such Benchmark is not or will be not be  representative, then the Administrative Agent may modify the definition of “Interest Period” (or  any similar or analogous definition) for any Benchmark settings at or after such time to remove  such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to  clause (i) above either (A) is subsequently displayed on a screen or information service for a  Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an  announcement that it is not or will not be representative for a Benchmark (including a  Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest  Period” (or any similar or analogous definition) for all Benchmark settings at or after such time  to reinstate such previously removed tenor.  (f) Benchmark Unavailability Period.  Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any  pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Borrowings to  be made, converted or continued during any Benchmark Unavailability Period and, failing that,  the Borrower will be deemed to have converted any such request into a request for a Borrowing  of or conversion to Base Rate Borrowings.  During a Benchmark Unavailability Period or at any  time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the  Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as  applicable, will not be used in any determination of the Base Rate.  SECTION 8.02. Illegality.  If, after the date hereof, a Change in Law shall make it  unlawful or impossible for any Lender (or its Lending Office) to make, maintain or fund its  SOFR Advances and such Lender shall so notify the Administrative Agent, the Administrative  Agent shall forthwith give notice thereof to the other Lenders and the Borrower, whereupon until  such Lender notifies the Borrower and the Administrative Agent that the circumstances giving  rise to such suspension no longer exist, the obligation of such Lender to make or permit  continuations or conversions of SOFR Advances shall be suspended.  Before giving any notice to  the Administrative Agent pursuant to this Section, such Lender shall designate a different  Lending Office if such designation will avoid the need for giving such notice and will not, in the  judgment of such Lender, be otherwise disadvantageous to such Lender.  If such Lender shall  determine that it may not lawfully continue to maintain and fund any of its portion of the  outstanding SOFR Advances to maturity and shall so specify in such notice, the Borrower shall  immediately prepay in full the then outstanding principal amount of the SOFR Advances of such  Lender, together with accrued interest thereon and any amount due such Lender pursuant to  Section 8.05.  Concurrently with prepaying such SOFR Advances, the Borrower shall be entitled  





 






  98  WBD (US) 57324867v5  to borrow at its option a Base Rate Advance in an equal principal amount from such Lender (on  which interest and principal shall be payable contemporaneously with the related SOFR  Advances of the other Lenders), and such Lender shall make such a Base Rate Advance.  SECTION 8.03. Increased Cost and Reduced Return.  (a) If after the date hereof, a Change in Law or compliance by any Lender (or  its Lending Office) with any request or directive (whether or not having the force of law)  of any Governmental Authority 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 or the Letter of Credit Issuer; or   (ii) subject any Lender to any tax of any kind whatsoever with respect  to this Agreement or any SOFR Advances made by it, or change the basis of  taxation of payments to such Lender in respect thereof (except for Indemnified  Taxes covered by Section 2.12(e) and the imposition of, or any change in the rate  of, any Excluded Tax payable by such Lender); or  (iii) impose on any Lender or the Letter of Credit Issuer any other  condition, cost or expense (other than Taxes) affecting this Agreement or  Advances 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 or such  other Recipient of making, converting to, continuing or maintaining any Advance or of  maintaining its obligation to make any such Advance, or to increase the cost to such  Lender, the Letter of Credit Issuer or such other Recipient of participating in, issuing or  maintaining any Letter of Credit (or of maintaining its obligation to participate in or to  issue any Letter of Credit), or to reduce the amount of any sum received or receivable by  such Lender, Letter of Credit Issuer or other Recipient hereunder (whether of principal,  interest or any other amount) then, upon request of such Lender, Letter of Credit Issuer or  other Recipient, the Borrower will pay to such Lender, Letter of Credit Issuer or other  Recipient, as the case may be, such additional amount or amounts as will compensate  such Lender, Letter of Credit Issuer or other Recipient, as the case may be, for such  additional costs incurred or reduction suffered.  (b) If any Lender or Letter of Credit Issuer determines that any Change in  Law affecting such Lender or Letter of Credit Issuer or any lending office of such Lender  or such Lender’s or Letter of Credit 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 Letter of Credit Issuer’s capital or on the capital of such Lender’s or Letter of  Credit Issuer’s holding company, if any, as a consequence of this Agreement, the  Revolver Commitments of such Lender or the Advances made by, or participations in  Letters of Credit or Swing Advances held by, such Lender, or the Letters of Credit issued  by the Letter of Credit Issuer, to a level below that which such Lender or Letter of Credit  Issuer or such Lender’s or Letter of Credit Issuer’s holding company could have achieved  





 






99  WBD (US) 57324867v5  but for such Change in Law (taking into consideration such Lender’s or Letter of Credit  Issuer’s policies and the policies of such Lender’s or Letter of Credit Issuer’s holding  company with respect to capital adequacy), then from time to time the Borrower will pay  to such Lender or Letter of Credit Issuer, as the case may be, such additional amount or  amounts as will compensate such Lender or Letter of Credit Issuer or such Lender’s or  Letter of Credit Issuer’s holding company for any such reduction suffered.  (c) A certificate of an authorized officer of a Lender or the Letter of Credit Issuer setting forth the amount or amounts necessary to compensate such Lender or the  Letter of Credit Issuer or its holding company, as the case may be, as specified in  paragraph (a) or (b) of this Section and delivered to the Borrower shall be conclusive  absent manifest error.  The Borrower shall pay such Lender or the Letter of Credit Issuer  the amount shown as due on any such certificate within ten (10) days after receipt  thereof.  (d) Failure or delay on the part of any Lender or the Letter of Credit Issuer to demand compensation pursuant to this Section shall not constitute a waiver of such  Lender’s or the Letter of Credit Issuer’s right to demand such compensation, provided  that the Borrower shall not be required to compensate a Lender or the Letter of Credit  Issuer pursuant to this Section for any increased costs incurred or reductions suffered  more than one hundred twenty (120) days prior to the date that such Lender or the Letter  of Credit Issuer notifies the Borrower of the Change in Law giving rise to such increased  costs or reductions and of such Lender’s or the Letter of Credit 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 one hundred twenty (120) day period referred  to above shall be extended to include the period of retroactive effect thereof).  SECTION 8.04. Base Rate Advances Substituted for Affected SOFR Advances.  If  (i) the obligation of any Lender to make or maintain a SOFR Advance has been suspended pursuant to Section 8.02 or (ii) any Lender has demanded compensation under Section 8.03, and the Borrower shall, by at least five (5) U.S. Government Business Days’ prior notice to such Lender through the Administrative Agent, have elected that the provisions of this Section shall apply to such Lender, then, unless and until such Lender notifies the Borrower that the circumstances giving rise to such suspension or demand for compensation no longer apply: (a) all Advances which would otherwise be made by such Lender as or permitted to be continued as or converted into SOFR Advances shall instead be made as  or converted into Base Rate Advances, (in all cases interest and principal on such  Advances shall be payable contemporaneously with the related SOFR Advances of the  other Lenders), and  (b) after its portion of the SOFR Advance has been repaid, all payments of principal which would otherwise be applied to repay such SOFR Advance shall be  applied to repay its Base Rate Advance instead.  In the event that the Borrower shall elect that the provisions of this Section shall apply to any  Lender, the Borrower shall remain liable for, and shall pay to such Lender as provided herein, all  





 






100  WBD (US) 57324867v5  amounts due such Lender under Section 8.03 in respect of the period preceding the date of  conversion of such Lender’s portion of any Advance resulting from the Borrower’s election.  SECTION 8.05. Compensation.  Upon the written request of any Lender, delivered  to the Borrower and the Administrative Agent, the Borrower shall pay to such Lender such  amount or amounts as shall compensate such Lender for any loss, cost or expense incurred by  such Lender as a result of:  (a) any payment or prepayment (whether pursuant to Section 2.10, 2.11, 6.01, 8.02 or otherwise) of an Adjusted Term SOFR Advance on a day other than the last day  of an Interest Period for such Advance; or  (b) any failure by the Borrower to prepay an Adjusted Term SOFR Advance on the date for such prepayment specified in the relevant notice of prepayment hereunder;  or  (c) any failure by the Borrower to borrow an Adjusted Term SOFR Advance on the date for the Borrowing of which such Adjusted Term SOFR Advance is a part  specified on the Closing Date;  such compensation to include, without limitation, an amount equal to the excess, if any, of  (x) the amount of interest which would have accrued on the amount so paid or prepaid or not prepaid or borrowed for the period from the date of such payment, prepayment or failure to prepay or borrow to the last day of the then current Interest Period for such Adjusted Term SOFR Advance (or, in the case of a failure to prepay or borrow, the Interest Period for such Adjusted Term SOFR Advance which would have commenced on the date of such failure to prepay or borrow) at the applicable rate of interest for such Adjusted Term SOFR Advance provided for herein over (y) the amount of interest (as reasonably determined by such Lender) such Lender would have paid on deposits in Dollars of comparable amounts having terms comparable to such period placed with it by leading lenders in the applicable market (if such Advance is an Adjusted Term SOFR Advance). SECTION 8.06. Mitigation.   (a) Designation of a Different Lending Office.  If any Lender requests compensation under Section 8.03, requires the Borrower to pay any Indemnified Taxes or  additional amounts to any Lender or any Governmental Authority for the account of any  Lender pursuant to Section 2.12(e), or asserts, pursuant to Section 8.02, that is it unlawful  for such Lender to make, maintain or fund SOFR Advances, then such Lender shall (at  the request of the Borrower) use reasonable efforts to designate a different lending office  for funding or booking its Loans hereunder or to assign its rights and obligations  hereunder to another of its offices, branches or affiliates, if, in the judgment of such  Lender, such designation or assignment (i) would eliminate or reduce amounts payable  pursuant to Section 8.03 or 2.12(e), or cure any such unlawfulness referenced in Section  8.02, as the case may be, in the future, and (ii) would not subject such Lender to any  unreimbursed cost or expense and would not otherwise be disadvantageous to such  Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred  by any Lender in connection with any such designation or assignment.      





 






101  WBD (US) 57324867v5  (b) Replacement of Lenders.  If any Lender requests compensation under Section 8.03, 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 2.12(e) and, in each case, such Lender has declined or is unable to  designate a different lending office in accordance with Section 8.06(a), 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 9.07), all of its interests,  rights (other than its existing rights to payments pursuant to Section 8.03 or Section  2.12(e)) and obligations under this Agreement and the related Loan Documents to an  Eligible Assignee that shall assume such obligations (which assignee may be another  Lender, if a Lender accepts such assignment); provided that:  (i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.07;  (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances and participations in Letters of Credit,  accrued interest thereon, accrued fees and all other amounts payable to it  hereunder and under the other Loan Documents (including any amounts under  Section 8.05) 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);  (iii) in the case of any such assignment resulting from a claim for compensation under Section 8.03 or payments required to be made pursuant to  Section 2.12(e), such assignment will result in a reduction in such compensation  or payments thereafter;  (iv) such assignment does not conflict with applicable law; and (v) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the  applicable amendment, waiver or consent.  A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to  require such assignment and delegation cease to apply.  ARTICLE IX  MISCELLANEOUS  





 






102  WBD (US) 57324867v5  SECTION 9.01. Notices Generally.  Except in the case of notices and other  communications expressly permitted to be given by telephone (and except as provided in  paragraph (b) below), all notices and other communications provided for herein shall be  in writing and shall be delivered by hand or overnight courier service, mailed by certified  or registered mail or sent by telecopier as follows:  (i) if to the Borrower or any other Loan Party, to it at 501 56th Street SE, Charleston, WV  25304, Attention of Scott Klemm, Chief Regulatory Officer  & Assistant Treasurer (Telecopier No. (304) 925-9610; Telephone No. (888) 420- 4427 Ext. 88026; Email: scottklemm@mgcwv.com), with a copy to UGI  Corporation, 460 North Gulph Road, King of Prussia, PA 19406, Attention:  Treasurer (Telephone No.: (610) 337-1000; Fax No.: (610) 992-3259; E-mail:  UGI-TREASURY@ugicorp.com);  (ii) if to the Administrative Agent, to Truist at 303 Peachtree Street NE, 25th Floor, Atlanta, Georgia 30308 Attention of Agency Services Manager  (Telecopier No. (404) 221-2001; Email: agency.services@truist.com);  (iii) if to a Lender, to it at its address (or telecopier number) set forth in its Administrative Questionnaire.  Notices sent by hand or overnight courier service, or mailed by certified or  registered mail, shall be deemed to have been given when received; notices sent by  telecopier shall be deemed to have been given when sent (except that, if not given during  normal business hours for the recipient, shall be deemed to have been given at the  opening of business on the next business day for the recipient).  Notices delivered  through electronic communications to the extent provided in paragraph (b) below, shall  be effective as provided in said paragraph (b).  (b) Electronic Communications.  Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including  e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s  receipt of an acknowledgement from the intended recipient (such as by the “return receipt  requested” function, as available, return e-mail or other written acknowledgement),  provided that if such notice or other communication is not sent during the normal  business hours of the recipient, such notice or communication shall be deemed to have  been sent at the opening of business on the next business day for the recipient, and  (ii) notices or communications posted to an Internet or intranet website shall be deemed 





 






103  WBD (US) 57324867v5  received upon the deemed receipt by the intended recipient at its e-mail address as  described in the foregoing clause (i) of notification that such notice or communication is  available and identifying the website address therefor.  (c) Change of Address, Etc.  Any party hereto may change its address or telecopier number for notices and other communications hereunder by notice to the other  parties hereto.  (d) Platform. Each Loan Party agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the  Letter of Credit Issuer and the other Lenders by posting the Communications on Debt  Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system  (the “Platform”).  Each of the Lenders and the Letter of Credit Issuer hereunder agrees  that any document posted on the Platform by the Administrative Agent shall be deemed  to have been delivered to such Lender or Letter of Credit Issuer, as applicable.  The  Platform is provided “as is” and “as available.” The Administrative Agent and its Related  Parties (collectively, the “Agent Parties”) do not warrant the adequacy of the Platform  and expressly disclaim liability for errors or omissions in the Communications. No  warranty of any kind, express, implied or statutory, including, without limitation, any  warranty of merchantability, fitness for a particular purpose, non-infringement of third- party rights or freedom from viruses or other code defects, is made by any Agent Party in  connection with the Communications or the Platform.  Each Loan Party understands that  the distribution of materials and other communications through an electronic medium is  not necessarily secure and that there are confidentiality and other risks associated with  such distribution and agrees and assumes the risks associated with such electronic  distribution.  In no event shall the Agent Parties have any liability to the Borrower or the  other Loan Parties, any Lender or any other Person or entity for damages of any kind,  including, without limitation, direct or indirect, special, incidental or consequential  damages, losses or expenses (whether in tort, contract or otherwise) arising out of the  Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of  communications through the Platform, except to the extent caused by the willful  misconduct or gross negligence of the Agent Parties. “Communications” means,  collectively, any notice, demand, communication, information, document or other  material provided by or on behalf of any Loan Party pursuant to any Loan Document or  the transactions contemplated therein which is distributed to the Administrative Agent,  any Lender or the Letter of Credit Issuer by means of electronic communications  pursuant to this Section, including through the Platform.  SECTION 9.02. No Waivers.  No failure or delay by the Administrative Agent or  any Lender in exercising any right, power or privilege hereunder or under any Note or other  Loan Document shall operate as a waiver thereof nor shall any single or partial exercise thereof  preclude any other or further exercise thereof or the exercise of any other right, power or  privilege.  The rights and remedies herein provided shall be cumulative and not exclusive of any  rights or remedies 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  





 






104  WBD (US) 57324867v5  and proceedings at law in connection with such enforcement shall be instituted and maintained  exclusively by, the Administrative Agent in accordance with Article VI for the benefit of all the  Lenders and the Letter of Credit 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 Letter of Credit Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Letter of Credit 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 9.04, 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 the Bankruptcy Code or any other applicable debtor relief law. SECTION 9.03. Expenses; Indemnity; Damage Waiver.  (a) Costs and Expenses.  The Loan Parties shall, jointly and severally, pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Letter of Credit Issuer and their respective Affiliates (including the reasonable fees, charges and disbursements of one firm of counsel for the Administrative Agent and the Letter of Credit Issuer), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement, the Letters of Credit and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii)  all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Letter of Credit Issuer or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent, the Letter of Credit Issuer or any Lender, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Advances made hereunder or the issuance of the Letters of Credit, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Advances. (b) Indemnification by the Loan Parties.  The Loan Parties shall, jointly and severally, indemnify the Administrative Agent (and any sub-agent thereof), the Letter of  Credit Issuer and each Lender and each Related Party of any of the foregoing Persons  (each such Person being called an “Indemnitee”) against, and hold each Indemnitee  harmless from, any and all losses, claims, penalties, damages, liabilities and related  expenses (including the fees, charges and disbursements of any counsel for any  Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third  party or by the Borrower or any other Loan Party arising out of, in connection with, or as  a result of (i) the execution or delivery of this Agreement, any other Loan Document or  any agreement or instrument contemplated hereby or thereby, the performance by the  parties hereto of their respective obligations hereunder or thereunder or the  consummation of the transactions contemplated hereby or thereby, (ii) any Advance or  issuance of a Letter of Credit or the use or proposed use of the proceeds therefrom,  (iii) any Environmental Releases on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to 





 






105  WBD (US) 57324867v5  the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,  investigation or proceeding relating to any of the foregoing, whether based on contract,  tort or any other theory, whether brought by a third party or by the Borrower or any other  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 expenses (x) are determined by a court of  competent jurisdiction by final and nonappealable judgment to have resulted from the  gross negligence or willful misconduct of such Indemnitee or (y) result from a claim  brought by the Borrower or any other Loan Party against an Indemnitee for breach of  such Indemnitee’s obligations hereunder or under any other Loan Document, if the  Borrower or such Loan Party has obtained a final and nonappealable judgment in its  favor on such claim as determined by a court of competent jurisdiction.  (c) Reimbursement by Lenders.  To the extent that a Loan Party for any reason fails to pay any amount required under paragraph (a) or (b) of this Section to be  paid by it to the Administrative Agent (or any sub-agent thereof), the Letter of Credit  Issuer 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 Letter of Credit Issuer or such  Related Party, as the case may be, such Lender’s Applicable Percentage (determined as  of the time that the applicable unreimbursed expense or indemnity payment is sought) of  such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim,  damage, liability or related expense, as the case may be, was incurred by or asserted  against the Administrative Agent (or any such sub-agent) in its capacity as such, the  Letter of Credit Issuer or against any Related Party of any of the foregoing acting for the  Administrative Agent (or any such sub-agent) or the Letter of Credit Issuer in connection  with such capacity.  The obligations of the Lenders under this paragraph (c) are subject to  the provisions of Sections 9.10 and 9.13.  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, the Loan Parties shall not assert, and hereby waive, any claim against any  Indemnitee, on any theory of liability, for indirect, consequential or punitive damages (as  opposed to direct or actual damages) arising out of, in connection with, or as a result of,  this Agreement, any other Loan Document or any agreement or instrument contemplated  hereby, the transactions contemplated hereby or thereby, any Advance or the use of the  proceeds thereof.  No Indemnitee referred to in paragraph (b) above shall be liable for  any damages arising from the use by unintended recipients of any information or other  materials distributed by it through telecommunications, electronic or other information  transmission systems in connection with this Agreement or the other Loan Documents or  the transactions contemplated hereby or thereby.  For purposes of the prior sentence, an  “unintended recipient” of information shall not include any addressee included on such  distribution.  (e) Payments.  All amounts due under this Section shall be payable promptly after demand therefor.  (f) Survival.  Each party’s obligations under this Section 9.03 shall survive the termination of the Loan Documents and payment of the obligations hereunder.  





 






106  WBD (US) 57324867v5  SECTION 9.04. Setoffs; Sharing of Set-Offs; Application of Payments.  (a) Upon an Obligation becoming due and payable and not paid by the Borrower or any Loan Party (whether at the stated maturity, by acceleration or  otherwise), if an Event of Default shall have occurred and be continuing, each Lender 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  or any such Affiliate to or for the credit or the account of the Borrower or any other Loan  Party against any and all of the obligations of the Borrower or such Loan Party now or  hereafter existing under this Agreement or any other Loan Document to such Lender,  irrespective of whether or not such Lender shall have made any demand under this  Agreement or any other Loan Document and although such obligations of the Borrower  or such Loan Party are owed to a branch or office of such Lender different from the  branch or office holding such deposit or obligated on such indebtedness.  The rights of  each Lender and its respective Affiliates under this Section are in addition to other rights  and remedies (including other rights of setoff) that such Lender or its respective Affiliates  may have.  Each Lender agrees to notify the Borrower and the Administrative Agent  promptly after any such setoff and application, provided that the failure to give such  notice shall not affect the validity of such setoff and application.  (b) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its  Advances or other Obligations hereunder or under any other Loan Document resulting in  such Lender’s receiving payment of a proportion of the aggregate amount of its Advances  and accrued interest thereon or other such Obligations greater than its pro rata share  thereof as provided herein, then the Lender receiving such greater proportion shall  (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Advances and such other Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Advances and other amounts owing them, provided that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded  and the purchase price restored to the extent of such recovery, without interest;  and  (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by a Loan Party pursuant to and in accordance with the express terms of this Agreement (including amounts applied by the Swing Line Lender to outstanding Swing Advances or amounts received by the Swing Line Lender or the Letter of Credit Issuer to be held as Cash Collateral to secure the obligations of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its 





 






107  WBD (US) 57324867v5  Advances to any assignee or participant, other than to the Borrower or any  Subsidiary thereof (as to which the provisions of this paragraph 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 each Loan Party rights of setoff and counterclaim with  respect to such participation as fully as if such Lender were a direct creditor of each Loan Party  in the amount of such participation.  SECTION 9.05. Amendments and Waivers.  (a) Any provision of this Agreement, the Notes or any other Loan Documents may be amended or waived if, but only if, such amendment or waiver is in writing and is  signed by the Borrower or the applicable Loan Party and the Required Lenders (and, if  the rights or duties of the Administrative Agent are affected thereby, by the  Administrative Agent); provided that no such amendment or waiver shall, unless signed  by the Lender or Lenders to be charged herewith: (i) extend or increase the Revolver  Commitment of such Lender or subject such Lender to any additional funding obligation  (it being understood and agreed that a waiver of any condition precedent set forth in  Section 3.02 or of any Default or Event of Default is not considered an extension or  increase in Revolver Commitments of any Lender or any Lender’s obligation to fund),  (ii) reduce the principal of or decrease the rate of interest on any Advance or decrease any fees hereunder, (iii) defer the date fixed for any payment of principal of (including any extension of the Maturity Date but excluding mandatory prepayments) or interest specified herein on, any Advance or Letter of Credit Obligation, or (subject to subsection (iii) of clause (b) of this Section 9.05) any fees or other amounts payable hereunder or under any other Loan Document; provided, however, that only the consent of the Required Lenders shall be necessary 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, (iv) reduce the amount of principal, decrease the amount of interest or decrease the amount of fees due on any date fixed for the payment thereof; provided, however, that only the consent of the Required Lenders shall be necessary 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, (v) change the percentage of the Revolver Commitments or of the aggregate unpaid principal amount of the Notes, or the percentage of Lenders, which shall be required for the Lenders or any of them to take any action under this Section or any other provision of this Agreement, (vi) change the application of any payments made under this Agreement or the other Loan Documents in a manner that would alter any pro rata sharing requirements, (vii) change or modify the definition of “Required Lenders,” or this Section 9.05 or (viii) except in connection with any Disposition permitted under Section 5.08 or any merger, consolidation or disposition permitted under Section 5.16, release any guaranty given to support payment of the Guaranteed Obligations or (ix) amend or waive any provision of the Loan Documents in any manner that permits a Defaulting Lender to cure its status as a Defaulting Lender without requiring such Defaulting Lender to pay in full its unfunded obligations with respect of the Revolver Advances, Letter of Credit Obligations and Swing Advances. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any 





 






108  WBD (US) 57324867v5  amendment, waiver or consent which by its terms requires the consent of all Lenders may  be effected with the consent of all Lenders other than Defaulting Lenders), provided that,  without in any way limiting Section 9.20(a)(i), any such amendment, waiver or consent  that would increase or extend the term of the Revolver Commitment or Revolver  Advances of such Defaulting Lender, extend the date fixed for the payment of principal  or interest owing to such Defaulting Lender hereunder, reduce the principal amount of  any obligation owing to such Defaulting Lender, reduce the amount of or the rate or  amount of interest on any amount owing to such Defaulting Lender or of any fee payable  to such Defaulting Lender hereunder, or alter the terms of this proviso, will require the  consent of such Defaulting Lender.  (b) Notwithstanding anything in clause (a), (i) 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, (ii) 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, (iii) the  Administrative Agent’s Letter Agreement may be amended, or rights or privileges  thereunder waived, only by means of a written agreement executed by all of the parties  thereto, and (iv) subject to Section 11.03, the Letter of Credit may be amended or  modified in a writing executed by the Letter of Credit Issuer and the Borrower.  Additionally, notwithstanding anything to the contrary herein, each Lender is entitled to  vote as such Lender sees fit on any bankruptcy reorganization plan that affects the  Advances or the Letters of Credit, and each Lender acknowledges that the provisions of  Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous  consent provisions set forth herein and 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.  SECTION 9.06. Margin Stock Collateral.  Each of the Lenders represents to the  Administrative Agent and each of the other Lenders that it in good faith is not, directly or  indirectly (by negative pledge or otherwise), relying upon any Margin Stock as collateral in the  extension or maintenance of the credit provided for in this Agreement.   SECTION 9.07. Successors and Assigns.  (a) Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective  successors and assigns permitted hereby, except that neither the Borrower nor any other  Loan Party may assign or otherwise transfer any of its rights or obligations hereunder  without the consent of all Lenders and no Lender may assign or otherwise transfer any of  its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with  the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance  with the provisions of paragraph (d) of this Section or (iii) by way of pledge or  assignment of a security interest subject to the restrictions of paragraph (e) of this Section  (and any other attempted assignment or transfer by any party hereto shall be null and  void).  Nothing in this Agreement, expressed or implied, shall be construed to confer  upon any Person (other than the parties hereto, their respective successors and assigns  permitted hereby, Participants to the extent provided in paragraph (d) of this Section and,  





 






  109  WBD (US) 57324867v5  to the extent expressly contemplated hereby, the Related Parties of each of the  Administrative Agent and the Lenders) any legal or equitable right, remedy or claim  under or by reason of this Agreement.  (b) Assignments by Lenders.  Any Lender may at any time assign to one or  more Eligible Assignees all or a portion of its rights and obligations under this  Agreement (including all or a portion of its Revolver Commitment and the Revolver  Advances at the time owing to it); provided that:  (i) except in the case of an assignment of the entire remaining amount  of the assigning Lender’s Revolver Commitment and the Revolver Advances at  the time owing to it or in the case of an assignment to a Lender or an Affiliate of a  Lender or an Approved Fund with respect to a Lender, the aggregate amount of  the Revolver Commitment (which for this purpose includes Revolver Advances  outstanding thereunder) or, if the applicable Revolver Commitment is not then in  effect, the principal outstanding balance of the Revolver Advances of the  assigning Lender subject to each such assignment (determined as of the date the  Assignment and Assumption with respect to such assignment is delivered to the  Administrative Agent or, if “Trade Date” is specified in the Assignment and  Assumption, as of the Trade Date) shall not be less than $5,000,000, unless each  of the Administrative Agent and, so long as no Default has occurred and is  continuing, the Borrower otherwise consent (each such consent not to be  unreasonably withheld or delayed); provided, however, 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) Domestic Business  Days after having received notice thereof;  (ii) each partial assignment shall be made as an assignment of a  proportionate part of all the assigning Lender’s rights and obligations under this  Agreement with respect to the Revolver Advances or the Revolver Commitment  assigned;  (iii) any assignment of a Revolver Commitment must be approved by  the Administrative Agent unless the Person that is the proposed assignee is itself a  Lender with a Revolver Commitment (whether or not the proposed assignee  would otherwise qualify as an Eligible Assignee);   (iv) the parties to each assignment shall execute and deliver to the  Administrative Agent an Assignment and Assumption, together with a processing  and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a  Lender, shall deliver to the Administrative Agent an Administrative  Questionnaire;   (v) No such assignment shall be made to (A) the Borrower or any of  the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any  of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would  constitute a Defaulting Lender or a Subsidiary thereof.  No such assignment shall  





 






  110  WBD (US) 57324867v5  be made to a natural Person (or a holding company, investment vehicle or trust  for, or owned and operated for the primary benefit of, a natural Person).  (vi) 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 Borrower and 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 Advances previously requested but not funded by the  Defaulting Lender, to each of which the applicable assignee and assignor hereby  irrevocably consent), to (x) pay and satisfy in full all payment liabilities then  owed by such Defaulting Lender to the Borrower, the Administrative Agent, the  Letter of Credit Issuer, the Swing Line Lender and each other Lender hereunder  (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full  pro rata share of all Revolver Advances and participations in Letters of Credit and  Swing Advances in accordance with its Applicable Percentage, in each case after  giving effect to Section 9.20(a)(v).  Notwithstanding the foregoing, in the event  that any assignment of rights and obligations of any Defaulting Lender hereunder  shall become effective under applicable law without compliance with the  provisions of this paragraph, then the assignee of such interest shall be deemed to  be a Defaulting Lender for all purposes of this Agreement until such compliance  occurs.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to  paragraph (c) of this Section, from and after the effective date specified in each  Assignment and Assumption, the Eligible 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 8.03 and 9.03 with respect to  facts and circumstances occurring prior to the effective date of such assignment;  provided, that except to the extent otherwise expressly agreed by the affected parties, no  assignment by a Defaulting Lender will constitute a waiver or release of any claim of any  party hereunder arising from that Lender’s having been a Defaulting Lender.  Any  assignment or transfer by a Lender of rights or obligations under this Agreement that  does not comply with this paragraph shall be treated for purposes of this Agreement as a  sale by such Lender of a participation in such rights and obligations in accordance with  paragraph (d) of this Section.  (c) Register.  The Administrative Agent, acting solely for this purpose as an  agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia a copy of  each Assignment and Assumption delivered to it and a register for the recordation of the  





 






111  WBD (US) 57324867v5  names and addresses of the Lenders, and the Revolver Commitments of, and principal  amounts (and stated interest) of the Revolver Advances owing to, each Lender pursuant  to the terms hereof from time to time (the “Register”).  In addition, the Administrative  Agent shall maintain on the Register the designation, and the revocation of designation,  of any Lender as a Defaulting Lender of which it has received notice.  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,  notwithstanding notice to the contrary.  The Register shall be available for inspection by  the Borrower and any Lender, at any reasonable time and from time to time upon  reasonable prior notice.  The Register shall also set forth the indebtedness of the  Borrower resulting from each drawing under any Letter of Credit made from time to time  hereunder and the amounts of principal, interest and fees payable and paid from time to  time hereunder.  In any legal action or proceeding in respect of this Agreement, the  entries made in such account or accounts shall be conclusive evidence of the existence  and amounts of the Letter of Credit Obligations of the Borrower therein recorded, absent  manifest error.  (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, 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 Revolver Commitment and/or the Revolver Advances owing to it); provided that (i)  such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender  shall remain solely responsible to the other parties hereto for the performance of such  obligations, and (iii) the Borrower, the Administrative Agent, the Letter of Credit Issuer  and Lenders shall continue to deal solely and directly with such Lender in connection  with such Lender’s rights and obligations under this Agreement.  For the avoidance of  doubt, each Lender shall be responsible for the indemnity under Section 9.03(c) with  respect to any payments made by such Lender to its Participant(s).  Any agreement or instrument pursuant to which a Lender sells such a participation shall  provide that such Lender shall retain the sole right to enforce this Agreement and to  approve any amendment, modification or waiver of any provision of this Agreement;  provided that such agreement or instrument may provide that such Lender will not,  without the consent of the Participant, agree to any amendment, modification or waiver  described in  Section 9.05(a)(i) through (ix) (inclusive) that affects such Participant.  The  Borrower agrees that each Participant shall be entitled to the benefits of Sections 8.03,  8.05 and 2.12(e) (subject to the requirements and limitations therein, including the  requirements under Section 2.12(e)(v) (it being understood that the documentation  required under Section 2.12(e)(v) shall be delivered to the participating Lender)) to the  same extent as if it were a Lender and had acquired its interest by assignment pursuant to  paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to  the provisions of Section 8.06 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 8.03  or 2.12(e) with respect to any participation, than its participating Lender would have been  





 






  112  WBD (US) 57324867v5  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 8.06(b) with respect to any Participant.  To the extent permitted by  law, each Participant also shall be entitled to the benefits of Section 9.04(a) as though it  were a Lender; provided that such Participant agrees to be subject to Section 9.04(b) as  though it were a Lender.  Each Lender that sells a participation shall, acting solely for this  purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters  the name and address of each Participant and the principal amounts (and stated interest)  of each Participant’s interest in the Revolver Advances or other obligations under the  Loan Documents (the “Participant Register”); provided that no Lender shall have any  obligation to disclose all or any portion of the Participant Register (including the identity  of any Participant or any information relating to a Participant's interest in any  commitments, loans, letters of credit or its other obligations under any Loan Document)  to any Person except to the extent that such disclosure is necessary to establish that such  commitment, loan, letter of credit or other obligation is in registered form under Section  5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant  Register shall be conclusive absent manifest error, and such Lender shall treat each  Person whose name is recorded in the Participant Register as the owner of such  participation for all purposes of this Agreement notwithstanding any notice to the  contrary.  For the avoidance of doubt, the Administrative Agent (solely in its capacity as  Administrative Agent) shall have no responsibility for maintaining a Participant Register.  (e) Certain Pledges.  Any Lender may at any time pledge or assign a security  interest in all or any portion of its rights under this Agreement to secure obligations of  such Lender, including any pledge or assignment to secure obligations to a Federal  Reserve Bank; provided that no such pledge or assignment shall release such Lender  from any of its obligations hereunder or substitute any such pledgee or assignee for such  Lender as a party hereto.  SECTION 9.08. Confidentiality.  Each of the Administrative Agent and the Lenders  agrees to exercise commercially reasonable efforts to maintain the confidentiality of the  Information (as defined below), except that Information may be disclosed (a) to its Affiliates and  to its and its Affiliates’ respective Related Parties (it being understood that the Persons to whom  such disclosure is made will be informed of the confidential nature of such Information and  instructed to keep such Information confidential), (b) to the extent requested by any regulatory  authority purporting to have jurisdiction over it (including any self-regulatory authority, such as  the National Association of Insurance Commissioners), (c) to the extent required by applicable  Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto,  (e) in connection with the exercise of any remedies hereunder or under any other Loan  Document or any action or proceeding relating to this Agreement or any other Loan Document  or the enforcement of rights hereunder or thereunder (provided that in such event the  Administrative Agent and the Lenders, as applicable, will, to the extent practicable and not  prohibited under the circumstances, exercise commercially reasonable efforts to notify the Loan  Parties on a timely basis prior to such disclosure so that a protective order or other appropriate  remedy may be sought by the Loan Parties), (f) subject to an agreement containing provisions  substantially the same as those of this Section, to (i) any assignee of or Participant in, or any  





 






  113  WBD (US) 57324867v5  prospective assignee of or Participant in, any of its rights or obligations under this Agreement or  (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction  relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the  extent such Information (x) becomes publicly available other than as a result of a breach of this  Section or (y) has been or becomes available to the Administrative Agent, any Lender or any of  their respective Affiliates on a nonconfidential basis from a source other than the Loan Parties.  For purposes of this Section, “Information” means all information received from the  Loan Parties or any of their Subsidiaries relating to the Loan Parties or any of their Subsidiaries  or any of their respective businesses.   Each of the Administrative Agent, the Letter of Credit  Issuer, the Swing Line Lender, any Lender or any Affiliate of the foregoing required to maintain  the confidentiality of Information as provided in this Section shall be considered to have  complied with its obligation to do so if such Person has exercised the same degree of care to  maintain the confidentiality of such Information as such Person would accord to its own  confidential information.   Notwithstanding anything herein to the contrary, “Information” shall not include, and the  Borrower, the other Loan Parties, the Administrative Agent, each Lender and the respective  Affiliates of each of the foregoing (and the respective partners, directors, officers, employees,  agents, advisors and other representatives of each of the foregoing and their Affiliates), and any  other party, may disclose to any and all Persons, without limitation of any kind, (a) any  information with respect to the U.S. federal and state income tax treatment of the transactions  contemplated hereby and any facts that may be relevant to understanding such tax treatment,  which facts shall not include for this purpose the names of the parties or any other Person named  herein, or information that would permit identification of the parties or such other Persons, or  any pricing terms or other nonpublic business or financial information that is unrelated to such  tax treatment or facts, and (b) all materials of any kind (including opinions or other tax analyses)  that are provided to any of the Persons referred to above relating to such tax treatment or facts.  SECTION 9.09. Representation by Lenders.  Each Lender hereby represents that it  is a commercial lender or financial institution which makes loans in the ordinary course of its  business and that it will make its Advances hereunder for its own account in the ordinary course  of such business; provided, however, that, subject to Section 9.07, the disposition of the Note or  Notes held by that Lender shall at all times be within its exclusive control.  SECTION 9.10. Obligations Several.  The obligations of each Lender hereunder are  several, and no Lender shall be responsible for the obligations or commitment of any other  Lender hereunder.  Nothing contained in this Agreement and no action taken by the Lenders  pursuant hereto shall be deemed to constitute the Lenders to be a partnership, an association, a  joint venture or any other kind of entity.  The amounts payable at any time hereunder to each  Lender shall be a separate and independent debt and each Lender shall be entitled to protect and  enforce its rights arising out of this Agreement or any other Loan Document and it shall not be  necessary for any other Lender to be joined as an additional party in any proceeding for such  purpose.  For the avoidance of doubt, nothing in this Section 9.10 shall be deemed or construed  to override any terms of this Agreement that mandate approval by the Required Lenders prior to  the exercise by the Administrative Agent or any Lender of any of its rights or remedies  hereunder.  





 






114  WBD (US) 57324867v5  SECTION 9.11. Survival of Certain Obligations.  Sections 8.03(a), 8.03(b), 8.05,  9.03 and 11.10, and the obligations of the Loan Parties thereunder, shall survive, and shall  continue to be enforceable notwithstanding, the termination of this Agreement, and the Revolver  Commitments and the payment in full of the principal of and interest on all Advances.  SECTION 9.12. North Carolina Law.  This Agreement and each Note shall be  construed in accordance with and governed by the law of the State of North Carolina.  SECTION 9.13. Severability.  In case any one or more of the provisions contained  in this Agreement, the Notes or any of the other Loan Documents should be invalid, illegal or  unenforceable in any respect, the validity, legality and enforceability of the remaining provisions  contained herein and therein shall not in any way be affected or impaired thereby and shall be  enforced to the greatest extent permitted by law.  SECTION 9.14. Interest.  In no event shall the amount of interest due or payable  hereunder or under the Notes or any other Loan Document exceed the maximum rate of interest  allowed by applicable Law, and in the event any such payment is inadvertently made to any  Lender by the Borrower or inadvertently received by any Lender, then such excess sum shall be  credited as a payment of principal, unless the Borrower shall notify such Lender in writing that it  elects to have such excess sum returned forthwith.  It is the express intent hereof that the  Borrower not pay and the Lenders not receive, directly or indirectly in any manner whatsoever,  interest in excess of that which may legally be paid by the Borrower under applicable Law.  SECTION 9.15. Interpretation.  No provision of this Agreement or any of the other  Loan Documents shall be construed against or interpreted to the disadvantage of any party hereto  by any court or other governmental or judicial authority by reason of such party having or being  deemed to have structured or dictated such provision.  SECTION 9.16. Counterparts; Integration; Effectiveness; Electronic Execution.  (a) Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each  of which shall constitute an original, but all of which when taken together shall constitute  a single contract.  This Agreement and the other Loan Documents, and any separate letter  agreements with respect to fees payable to the Administrative Agent, 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.  This Agreement shall become effective when it shall have been executed by the  Administrative Agent and when the Administrative Agent shall have received  counterparts hereof that, when taken together, bear the signatures of each of the other  parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement  by telecopy shall be effective as delivery of a manually executed counterpart of this  Agreement  (b) Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be  deemed to include electronic signatures or the keeping of records in electronic form, each  of which shall be of the same legal effect, validity or enforceability as a manually  





 






115  WBD (US) 57324867v5  executed signature or the use of a paper-based recordkeeping system, as the case may be,  to the extent and as provided for in any applicable Law, including the Federal Electronic  Signatures in Global and National Commerce Act, the New York State Electronic  Signatures and Records Act, or any other similar state laws based on the Uniform  Electronic Transactions Act.   SECTION 9.17. Jurisdiction; Waiver of Venue; Service of Process; Waiver of Jury  Trial.  (a) Submission to Jurisdiction.  Each of the parties hereto irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the  courts of the State of New York sitting in New York County and of the United States  District Court of the Southern District of New York, and any appellate court from any  thereof, in any action or proceeding arising out of or relating to this Agreement or any  other Loan Document, or for recognition or enforcement of any judgment, and each of  the parties hereto irrevocably and unconditionally agrees that all claims in respect of any  such action 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 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 any party hereto may otherwise have to bring any  action or proceeding relating to this Agreement or any other Loan Document against the  other parties hereto or their properties in the courts of any jurisdiction, provided, that the  parties hereto shall, to the extent legally permissible, consolidate all outstanding lawsuits  to which any of them is party related to this Agreement or any other Loan Document with  cases to which the parties hereto are party pending in courts of the State of New York  sitting in New York County or the United States District Court of the Southern District of  New York when such cases (or any related issues, claims, crossclaims, counterclaims, or  third party claims) involve a common question of law or fact with respect to the Loan  Parties, this Agreement or any other Loan Document.  (b) Waiver of Venue.  Each of the parties hereto 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 (a) of this Section.  Each of the parties hereto hereby irrevocably  waives, to the fullest extent permitted by applicable Law, the defense of an inconvenient  forum to the maintenance of such action or proceeding in any such court.  (c) Service of Process.  Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 9.01.  Nothing in this Agreement  will affect the right of any party hereto to serve process in any other manner permitted by  applicable Law.  (d) Waiver of Jury Trial.  EACH PARTY HERETO HEREBY  IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY  APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY  





 






116  WBD (US) 57324867v5  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. SECTION 9.18. Independence of Covenants.  All covenants under this Agreement  and the other Loan Documents shall be given independent effect so that if a particular action or  condition is not permitted by any such covenant, the fact that it would be permitted by an  exception to, or would be otherwise allowed by, another covenant shall not avoid the occurrence  of a Default if such action is taken or such condition exists.  SECTION 9.19. Cash Collateral.  At any time that there shall exist a Defaulting  Lender, within one Domestic Business Day following the written request of the Administrative  Agent or the Letter of Credit Issuer (with a copy to the Administrative Agent) the Borrower shall  Cash Collateralize the Letter of Credit Issuer’s Fronting Exposure with respect to such  Defaulting Lender (determined after giving effect to Section 9.20(a)(v) and any Cash Collateral  provided by such Defaulting Lender).  (a) Grant of Security Interest.  The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative  Agent, for the benefit of the Letter of Credit Issuer, and agrees to maintain, a first priority  security interest in all such Cash Collateral as security for the Defaulting Lender’s  obligation to fund participations in respect of Letter of Credit Obligations, to be applied  pursuant to clause (b) below.  If at any time the Administrative Agent determines that  Cash Collateral is subject to any right or claim of any Person other than the  Administrative Agent and the Letter of Credit Issuer as herein provided, the Borrower  will, promptly upon demand by the Administrative Agent, pay or provide to the  Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such  deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).  (b) Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 9.19 or Section 9.20 in respect of  Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation  to fund participations in respect of Letter of Credit Obligations (including, as to Cash  Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for  which the Cash Collateral was so provided, prior to any other application of such  property as may otherwise be provided for herein.  (c) Termination of Requirement.  Cash Collateral (or the appropriate portion thereof) provided to reduce the Letter of Credit Issuer’s Fronting Exposure shall no  longer be required to be held as Cash Collateral pursuant to this Section 9.19 following  





 






117  WBD (US) 57324867v5  (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the Letter of Credit Issuer that there exists excess Cash Collateral, and such Cash Collateral shall be immediately returned to the Person that provided it; provided that, subject to Section 9.20, the Person providing Cash Collateral and the Letter of Credit Issuer may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations. SECTION 9.20. Defaulting Lenders.  (a) Notwithstanding anything contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a  Defaulting Lender, to the extent permitted by applicable Law:  (i) 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 Section 9.05(a);  (ii) 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 VI or otherwise) or  received by the Administrative Agent from a Defaulting Lender pursuant to  Section 9.04 shall be applied at such time or times as may be determined by the  Administrative Agent as follows (in each case determined after giving effect to  Section 9.20(a)(v)): 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 Letter  of Credit Issuer or Swing Line Lender hereunder; third, to Cash Collateralize the  Letter of Credit Issuer’s Fronting Exposure with respect to such Defaulting  Lender in accordance with Section 9.19; fourth, as the Borrower may request (so  long as no Default or Event of Default exists and is continuing), to the funding of  any Advance in respect of which such Defaulting Lender has failed to fund its  portion thereof as required by this Agreement, as determined by the  Administrative Agent; fifth, if so determined by the Administrative Agent and the  Borrower, to be held in a deposit account and released pro rata in order to (x)  satisfy such Defaulting Lender’s potential future funding obligations with respect  to Advances under this Agreement and (y) Cash Collateralize the Letter of Credit  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 9.19; sixth, to the payment of any amounts owing to the Lenders, the  Letter of Credit Issuer or the Swing Line Lender as a result of any judgment of a  court of competent jurisdiction obtained by any Lender, the Letter of Credit 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 or Event of Default exists, to the payment of any amounts  owing to the Borrower as a result of any judgment of a court of competent  jurisdiction obtained by the Borrower against such Defaulting Lender as a result  of such Defaulting Lender's breach of its obligations under this Agreement; and  





 






118  WBD (US) 57324867v5  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 Advances or Reimbursement Obligations in respect of which such  Defaulting Lender has not fully funded its appropriate share, and (y) such  Advances were made or the Letters of Credit related to such Reimbursement  Obligations were issued at a time when the conditions set forth in Section 3.02  were satisfied or waived, such payment shall be applied solely to pay the  Advances of, and Reimbursement Obligations owed to, all Non-Defaulting  Lenders on a pro rata basis prior to being applied to the payment of any Advances  of, or Reimbursement Obligations owed to, such Defaulting Lender until such  time as all Advances and funded and unfunded participations in Reimbursement  Obligations and Swing Advances are held by the Lenders pro rata in accordance  with their Commitments without giving effect to Section 9.20(a)(v). 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 9.20(a)(ii) shall be deemed paid to and  redirected by such Defaulting Lender, and each Lender irrevocably consents  hereto;    (iii) each Defaulting Lender shall not be entitled to receive any Unused Commitment Fee for any period during which that Lender is a Defaulting Lender  and notwithstanding anything to the contrary in this Agreement, the Borrower  shall not be required to pay any such Unused Commitment Fee that otherwise  would have been required to have been paid to such Defaulting Lender;  (iv) any Letter of Credit Fees that accrue in favor of such Defaulting Lender, or that are accrued prior to the time such Lender became a Defaulting  Lender but unpaid as of such time, shall be paid to the Letter of Credit Issuer for  its own account;  (v) all or any part of such Defaulting Lender’s participation in Letter of Credit Obligations and Swing Advances shall be reallocated among the Non- Defaulting Lenders in accordance with their respective Applicable Percentages  (calculated without regard to such Defaulting Lender’s Revolver Commitment)  but only to the extent that (x) no Default or Event of Default has occurred and is  continuing, and (y) such reallocation does not cause the aggregate Credit  Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s  Revolver Commitment. Subject to Section 9.22, 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; and  (vi) if the reallocation described in clause (v) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy  available to it hereunder or under law, (x) first, prepay Swing Advances in an  amount equal to the Swing Line Lender’s Fronting Exposure and (y) second, Cash  





 






119  WBD (US) 57324867v5  Collateralize Letter of Credit Issuer’s Fronting Exposure in accordance with the  procedures set forth in Section 9.19.  (b) If a Defaulting Lender, to the extent applicable, purchases at par that portion of outstanding Advances of the other Lenders or takes such other actions as the  Administrative Agent may determine to be necessary to cause the Advances and funded  and unfunded participations in Letters of Credit and Swing Advances to be held pro rata  by the Lenders in accordance with their Revolver Commitments (without giving effect to  Section 9.20(a)(v)), and reimburses (or causes the reimbursement of) the Borrower, the  Administrative Agent, the Lenders and the Letter of Credit Issuer for any liability,  expenses or other costs they incurred as a result of such Lender’s having been a  Defaulting Lender, such Lender will cease to be a Defaulting Lender; provided that no  adjustments will be made retroactively with respect to fees accrued or payments made by  or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided,  further, that except to the extent otherwise expressly agreed by the affected parties, no  change hereunder from Defaulting Lender to Lender will constitute a waiver or release of  any claim of any party hereunder arising from that Lender’s having been a Defaulting  Lender.   (c) So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Advances unless it is satisfied that it will have no  Fronting Exposure after giving effect to such Swing Advance and (ii) the Letter of Credit  Issuer shall not be required to issue, extend, renew or increase any Letter of Credit unless  it is satisfied that it will have no Fronting Exposure after giving effect thereto.  (d) During any period during which a Lender is a Defaulting Lender, the Borrower may, without waiver or release of any claim the Borrower or any other party  hereunder may have arising from such Defaulting Lender’s having been a Defaulting  Lender:  (i) upon written notice to such Defaulting Lender and the Administrative Agent, require such Defaulting Lender to assign and delegate all  of its interests, rights and obligations under this Agreement and the related Loan  Documents in accordance with Section 8.06(b); and   (i) with the prior written consent of the Administrative Agent (in its sole discretion), the Borrower may, effective immediately upon written notice to  such Defaulting Lender and without the consent of any other Person, terminate  (on a non-ratable basis) a portion of the Revolver Commitment of a Defaulting  Lender in an amount equal to the Unused Commitment of such Defaulting  Lender.  (e) The Borrower’s rights under Section 9.20(d) to require any Defaulting Lender to make any assignment or delegation and to terminate the Unused Commitment  of any Defaulting Lender shall cease to be of further force and effect upon the  termination or expiry of the period during which such Lender is a Defaulting Lender.  





 






120  WBD (US) 57324867v5  SECTION 9.21. Patriot Act.  Each Lender and the Administrative Agent (for itself  and not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the  requirements of the Patriot Act it is required to obtain, verify and record information that  identifies such Loan Party, which information includes the name and address of such Loan Party  and other information that will allow such Lender or the Administrative Agent, as applicable, to  identify such Loan Party in accordance with the Patriot 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 comply with  its ongoing obligations under applicable “know your customer” and anti-money laundering rules  and regulations, including, without limitation, the Beneficial Ownership Regulations and the  Patriot Act.  SECTION 9.22. Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other  agreement, arrangement or understanding among any such parties, each party hereto  acknowledges that any liability of any Affected Financial Institution arising under any Loan  Document, to the extent such liability is unsecured, may be subject to the write-down and  conversion powers of the applicable Resolution Authority and agrees and consents to, and  acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be  payable to it by any party hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent  undertaking, or a bridge institution that may be issued to it or otherwise conferred  on it, and that such shares or other instruments of ownership will be accepted by it  in lieu of any rights with respect to any such liability under this Agreement or any  other Loan Document; or  (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.  ARTICLE X  GUARANTY  SECTION 10.01. Unconditional Guaranty.  Each Guarantor hereby irrevocably,  unconditionally and jointly and severally guarantees, each as a primary obligor and not merely as  a surety, to the Administrative Agent, the Lenders and the Letter of Credit Issuer the due and  punctual payment of the principal of and the premium, if any, and interest on the Guaranteed  Obligations and any and all other amounts due under or pursuant to the Loan Documents, when  





 






121  WBD (US) 57324867v5  and as the same shall become due and payable (whether at stated maturity or by optional or  mandatory prepayment or by declaration, redemption or otherwise) in accordance with the terms  of the Loan Documents. The Guarantors’ guaranty under this Section is an absolute, present and  continuing guarantee of payment and not of collectibility, and is in no way conditional or  contingent upon any attempt to collect from the Borrower, any of the Guarantors or any other  guarantor of the Guaranteed Obligations (or any portion thereof) or upon any other action,  occurrence or circumstances whatsoever.  In the event that the Borrower or any Guarantor shall  fail so to pay any such principal, premium, interest or other amount to the Administrative Agent,  a Lender or the Letter of Credit Issuer, the Guarantors will pay the same forthwith, without  demand, presentment, protest or notice of any kind (all of which are waived by the Guarantors to  the fullest extent permitted by law), in lawful money of the United States, at the place for  payment specified in the Loan Documents or specified by such Administrative Agent in writing,  to such Administrative Agent.  The Guarantors further agree, promptly after demand, to pay to  the Administrative Agent, the Lenders and the Letter of Credit Issuer the costs and expenses  incurred by such Administrative Agent, Lender or the Letter of Credit Issuer in connection with  enforcing the rights of such Administrative Agent, Lenders and the Letter of Credit Issuer  against the Borrower and any or all of the Guarantors (whether in a Bankruptcy proceeding or  otherwise) following any default in payment of any of the Guaranteed Obligations or the  obligations of the Guarantors hereunder, including, without limitation, the fees and expenses of  counsel to the Administrative Agent, such Lenders and the Letter of Credit Issuer.  SECTION 10.02. Obligations Absolute.  The obligations of the Guarantors  hereunder are and shall be absolute and unconditional, irrespective of the validity, regularity or  enforceability of this Agreement, any of the Guaranteed Obligations or any of the Loan  Documents, shall not be subject to any counterclaim, set-off, deduction or defense based upon  any claim any of the Guarantors may have against the Borrower, any other Guarantor or the  Administrative Agent, any Lender or the Letter of Credit Issuer, hereunder or otherwise, and  shall remain in full force and effect without regard to, and shall not be released, discharged or in  any way affected by, to the fullest extent permitted by law, any circumstance or condition  whatsoever (whether or not any of the Guarantors shall have any knowledge or notice thereof),  including, without limitation:  (a) any amendment or modification of or supplement to any of the Loan Documents or any other instrument referred to herein or therein, or any assignment or  transfer of any thereof or of any interest therein, or any furnishing or acceptance of  additional security for any of the Guaranteed Obligations;  (b) any consent or extension under any Loan Document or any such other instrument, or any indulgence or other action or inaction under or in respect of, or any  extensions or renewals of, any Loan Document, any such other instrument or any  Guaranteed Obligation;  (c) any failure, omission or delay on the part of the Administrative Agent to enforce, assert or exercise any right, power or remedy conferred on or available to the  Administrative Agent or any Lender against the Borrower or any Guarantor, any  Subsidiary of the Borrower or any Subsidiary of any Guarantor;  





 






  122  WBD (US) 57324867v5  (d) any Bankruptcy, insolvency, readjustment, composition, liquidation or  similar proceeding with respect to the Borrower, any Guarantor, any Subsidiary of the  Borrower or any Subsidiary of any Guarantor or any property of the Borrower, any  Guarantor or any such Subsidiary or any unavailability of assets against which the  Guaranteed Obligations, or any of them, may be enforced;  (e) any merger or consolidation of the Borrower, any Subsidiary of the  Borrower or any Guarantor or any of the Guarantors into or with any other Person or any  sale, lease or transfer of any or all of the assets of any of the Guarantors, the Borrower or  any Subsidiary of the Borrower or any Guarantor to any Person;  (f) any failure on the part of the Borrower, any Guarantor or any Subsidiary  of the Borrower or any Guarantor for any reason to comply with or perform any of the  terms of any agreement with any of the Guarantors;  (g) any exercise or non-exercise by the Administrative Agent, any Lender or  the Letter of Credit Issuer, of any right, remedy, power or privilege under or in respect of  any of the Loan Documents or the Guaranteed Obligations, including, without limitation,  under this Section;  (h) any default, failure or delay, willful or otherwise, in the performance or  payment of any of the Guaranteed Obligations;  (i) any furnishing or acceptance of security, or any release, substitution or  exchange thereof, other than if such Guarantor has been released in accordance with the  terms of this Agreement, for any of the Guaranteed Obligations;  (j) any failure to give notice to any of the Guarantors of the occurrence of any  breach or violation of, or any event of default or any default under or with respect to, any  of the Loan Documents or the Guaranteed Obligations;  (k) any partial prepayment, or any assignment or transfer, of any of the  Guaranteed Obligations; or  (l) any other circumstance (other than payment in full) which might otherwise  constitute a legal or equitable discharge or defense of a guarantor or which might in any  manner or to any extent vary the risk of such Guarantor.  The Guarantors covenant that their respective obligations hereunder will not be discharged  except by complete performance of the obligations contained in the Loan Documents and this  Agreement and the final payment in full of the Guaranteed Obligations.  The Guarantors  unconditionally waive, to the fullest extent permitted by law (A) notice of any of the matters  referred to in this Section, (B) any and all rights which any of the Guarantors may now or  hereafter have arising under, and any right to claim a discharge of the Guarantor’s obligations  hereunder by reason of the failure or refusal by the Administrative Agent, any Lender or the  Letter of Credit Issuer to take any action pursuant to any statute permitting a Guarantor to  request that the Administrative Agent or any Lender attempt to collect the Guaranteed  Obligations from the Borrower, any of the Guarantors or any other guarantor (including without  





 






123  WBD (US) 57324867v5  limitation any rights under Sections 26-7, 26-8 or 26-9 of the North Carolina General Statutes, or  any similar or successor provisions), (C) all notices which may be required by statute, rule of law  or otherwise to preserve any of the rights of the Administrative Agent, any Lender or the Letter  of Credit Issuer against the Guarantors, including, without limitation, presentment to or demand  of payment from the Borrower, any of the Subsidiaries of the Borrower or any Guarantor, or any  of the other Guarantors with respect to any Loan Document or this agreement, notice of  acceptance of the Guarantors’ guarantee hereunder and/or notice to the Borrower, any of the  Subsidiaries of the Borrower or any Guarantor, or any Guarantor of default or protest for  nonpayment or dishonor, (D) any diligence in collection from or protection of or realization upon  all or any portion of the Guaranteed Obligations or any security therefor, any liability hereunder,  or any party primarily or secondarily liable for all or any portion of the Guaranteed Obligations,  and (E) any duty or obligation of the Administrative Agent, any Lender or the Letter of Credit  Issuer to proceed to collect all or any portion of the Guaranteed Obligations from, or to  commence an action against, the Borrower, any Guarantor or any other Person, or to resort to  any security or to any balance of any deposit account or credit on the books of the  Administrative Agent, any Lender or the Letter of Credit Issuer in favor of the Borrower, any  Guarantor or any other Person, despite any notice or request of any of the Guarantors to do so.  SECTION 10.03. Continuing Obligations; Reinstatement.  The obligations of the  Guarantors under this Article X are continuing obligations and shall continue in full force and  effect until such time as all of the Guaranteed Obligations (and any renewals and extensions  thereof) shall have been finally paid and satisfied in full.  The obligations of the Guarantors  under this Article X shall continue to be effective or be automatically reinstated, as the case may  be, if any payment made by the Borrower, any Guarantor or any Subsidiary of the Borrower or  any Guarantor on, under or in respect of any of the Guaranteed Obligations is rescinded or must  otherwise be restored or returned by the recipient upon the insolvency, Bankruptcy, dissolution,  liquidation or reorganization of the Borrower, any Guarantor or any such Subsidiary, or upon or  as a result of the appointment of a custodian, receiver, trustee or other officer with similar  powers with respect to the Borrower, any Guarantor or any such Subsidiary or any substantial  part of the property of the Borrower, any Guarantor or any such Subsidiary, or otherwise, all as  though such payment had not been made.  If an event permitting the acceleration of all or any  portion of the Guaranteed Obligations shall at any time have occurred and be continuing, and  such acceleration shall at such time be stayed, enjoined or otherwise prevented for any reason,  including without limitation because of the pendency of a case or proceeding relating to the  Borrower, any Guarantor or any Subsidiary of the Borrower or any Guarantor under any Debtor  Relief Law, for purposes of this Article X and the obligations of the Guarantors hereunder, such  Guaranteed Obligations shall be deemed to have been accelerated with the same effect as if such  Guaranteed Obligations had been accelerated in accordance with the terms of the applicable  Loan Documents or of this Agreement.  SECTION 10.04. Additional Security, Etc.  The Guarantors authorize the  Administrative Agent on behalf of the Lenders without notice to or demand on the Guarantors  and without affecting their liability hereunder, from time to time (a) to obtain additional or  substitute endorsers or guarantors; (b) to exercise or refrain from exercising any rights against,  and grant indulgences to, the Borrower, any Subsidiary of the Borrower or any Guarantor, any  other Guarantor or others; and (c) to apply any sums, by whomsoever paid or however realized,  to the payment of the principal of, premium, if any, and interest on, and other obligations  consisting of, the Guaranteed Obligations.  The Guarantors waive any right to require the  





 






124  WBD (US) 57324867v5  Administrative Agent, any Lender or the Letter of Credit Issuer to proceed against any additional  or substitute endorsers or guarantors or the Borrower or any of their Subsidiaries or any other  Person or to pursue any other remedy available to the Administrative Agent, any such Lender or  the Letter of Credit Issuer.  SECTION 10.05. Information Concerning the Borrower.  The Guarantors assume all  responsibility for being and keeping themselves informed of the financial condition and assets of  the Borrower, the other Guarantors and their respective Subsidiaries, and of all other  circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the  nature, scope and extent of the risks which the Guarantors assume and insure hereunder, and  agree that none of the Administrative Agent, any Lender or the Letter of Credit Issuer shall have  any duty to advise the Guarantors of information known to the Administrative Agent, any such  Lender or the Letter of Credit Issuer regarding or in any manner relevant to any of such  circumstances or risks.  SECTION 10.06. Guarantors’ Subordination.  The Guarantors hereby absolutely  subordinate, both in right of payment and in time of payment, any present and future  indebtedness of the Borrower or any Subsidiary of the Borrower or any Guarantor to any or all of  the Guarantors to the indebtedness of the Borrower or any such Subsidiary to the Administrative  Agent, Lenders and the Letter of Credit Issuer (or any of them), provided that the Guarantors  may receive scheduled payments of principal, premium (if any) and interest in respect of such  present or future indebtedness so long as there is no Event of Default then in existence.  SECTION 10.07. Waiver of Subrogation.  Notwithstanding anything herein to the  contrary, until the payment in full of the Guaranteed Obligations, the Guarantors hereby waive  any right of subrogation (under contract, Section 509 of the Bankruptcy Code or otherwise) or  any other right of indemnity, reimbursement or contribution and hereby waive any right to  enforce any remedy that the Administrative Agent, any Lender or the Letter of Credit Issuer now  has or may hereafter have against the Borrower, any Guarantor or any endorser or any other  guarantor of all or any part of the Guaranteed Obligations, and the Guarantors hereby waive any  benefit of, and any right to participate in any security or collateral given to the Administrative  Agent, any Lender or the Letter of Credit Issuer to secure payment or performance of the  Guaranteed Obligations or any other liability of the Borrower to the Administrative Agent, any  Lender or the Letter of Credit Issuer.  The waiver contained in this Section shall continue and  survive the termination of this Agreement and the final payment in full of the Guaranteed  Obligations.  SECTION 10.08. Enforcement.  In the event that the Guarantors shall fail forthwith  to pay upon demand of the Administrative Agent, any Lender or the Letter of Credit Issuer any  amounts due pursuant to this Article X or to perform or comply with or to cause performance or  compliance with any other obligation of the Guarantors under this Agreement the Administrative  Agent, any Lender and the Letter of Credit Issuer shall be entitled and empowered to institute  any action or proceeding at law or in equity for the collection of the sums so due and unpaid or  for the performance of or compliance with such terms, and may prosecute any such action or  proceeding to judgment or final decree and may enforce such judgment or final decree against  the Guarantors and collect in the manner provided by law out of the property of the Guarantors,  wherever situated, any monies adjudged or decreed to be payable.  The obligations of the  





 






125  WBD (US) 57324867v5  Guarantors under this Agreement are continuing obligations and a fresh cause of action shall  arise in respect of each default hereunder.  SECTION 10.09. Miscellaneous.  Except as may otherwise be expressly agreed upon  in writing, the liability of the Guarantors under this Article X shall neither affect nor be affected  by any prior or subsequent guaranty by the Guarantors of any other indebtedness to the  Administrative Agent, the Lenders or the Letter of Credit Issuer.  Notwithstanding anything in  this Article X to the contrary, the maximum liability of each Guarantor hereunder shall in no  event exceed the maximum amount which could be paid out by such Guarantor without  rendering such Guarantor’s obligations under this Article X, in whole or in part, void or voidable  under applicable Law, including, without limitation, (i) the Bankruptcy Code of 1978, as  amended, and (ii) any applicable state or federal law relative to fraudulent conveyances.  SECTION 10.10. Acknowledgement Regarding Any Supported QFCs.  To the extent  that the Loan Documents provide support, through a guarantee or otherwise, for Hedge  Transactions 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):  (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.  





 






126  WBD (US) 57324867v5  (b) As used in this Section 10.10, the following terms have the following meanings:   “BHC Act Affiliate” of a party means an “affiliate” (as such term is  defined under, and interpreted in accordance with, 12 U.S.C. 1841(k))  of such party.  “Covered Entity” means any of the following:  i. a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b);  ii. a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or  iii. a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).  “Default Right” has the meaning assigned to that term in, and shall be  interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as  applicable.  “QFC” has the meaning assigned to the term “qualified financial  contract” in, and shall be interpreted in accordance with, 12 U.S.C.  5390(c)(8)(D).”  ARTICLE XI  LETTER OF CREDIT FACILITY  SECTION 11.01. Obligation to Issue.  Subject to the terms and conditions of this  Agreement, and in reliance upon the representations and warranties of the Borrower and the  agreement of the Lenders herein set forth, the Letter of Credit Issuer shall issue for the account  of Borrower, one or more Letters of Credit denominated in Dollars, in accordance with Article II  and this Article XI, from time to time during the Availability Period.    SECTION 11.02. Types and Amounts.  The Letter of Credit Issuer shall have no  obligation to issue, amend, extend or renew any Letter of Credit at any time:  (a) if the aggregate maximum amount then available for drawing under Letters of Credit, after giving effect to the issuance of the requested Letter of Credit, shall  exceed any limit imposed by law or regulation upon the Letter of Credit Issuer;  (b) if, after giving effect to the issuance of the requested Letter of Credit, (i) the aggregate Letter of Credit Obligations would exceed $20,000,000, or (ii) the  conditions set forth in of Section 2.01(a) would not be satisfied;  (c) which has an expiration date (i) subject to the terms of Section 11.04(d), more than 365 days after the date of issuance (or, in the case of any renewal or extension  thereof, one year after such renewal or extension), unless the Required Lenders have  





 






  127  WBD (US) 57324867v5  approved a later expiration date or (ii) after the Letter of Credit Expiration Date, unless  all Lenders have approved such expiration date; or  (d) if any Lender is at such time a Defaulting Lender and the Letter of Credit  Issuer has Fronting Exposure after giving effect to the reallocation set forth in Section  9.20(a)(v), unless the Letter of Credit Issuer has entered into arrangements  satisfactory to  the Letter of Credit Issuer with the Borrower or such Defaulting Lender (including the  delivery of Cash Collateral pursuant to Section 9.19, which shall constitute such  satisfactory arrangements) to eliminate the Letter of Credit Issuer’s Fronting Exposure  (after giving effect to the reallocation set forth in Section 9.20(a)(v)) with respect to such  Defaulting Lender’s participation in such Letter of Credit and all other Letter of Credit  Obligations as to which the Letter of Credit Issuer has Fronting Exposure, as it may elect  in its sole discretion (which arrangements are hereby consented to by the Lenders).  SECTION 11.03. Conditions.  In addition to being subject to the satisfaction of the  conditions contained in Article III, the obligation of the Letter of Credit Issuer to issue any Letter  of Credit is subject to the satisfaction in full of the following conditions:  (a) the Borrower shall have delivered to the Letter of Credit Issuer at such  times and in such manner as the Letter of Credit Issuer may prescribe, a Letter of Credit  Application Agreement and such other documents and materials as may be required  pursuant to the terms thereof all reasonably satisfactory in form and substance to the  Letter of Credit Issuer and the terms of the proposed Letter of Credit shall be reasonably  satisfactory in form and substance to the Letter of Credit Issuer;  (b) as of the date of the request for issuance, no order, judgment or decree of  any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain  the Letter of Credit Issuer from issuing such Letter of Credit, or any applicable Law from  any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall  prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of  credit generally or such Letter of Credit in particular or shall impose upon the Letter of  Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital  requirement (for which the Letter of Credit Issuer is not otherwise compensated  hereunder) not in effect on the Closing Date, or shall impose upon the Letter of Credit  Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing  Date and which the Letter of Credit Issuer in good faith deems material to it for which the  Borrower (after reasonable request from the Administrative Agent in writing) has failed  to (i) pay for such unreimbursed loss, cost or expense or (ii) indemnify the Letter of  Credit Issuer; and  (c) the issuance of such Letter of Credit shall not violate one or more policies  of the Letter of Credit Issuer applicable to letters of credit generally.    SECTION 11.04. Issuance of Letters of Credit.  (a) Request for Issuance.  At least three (3) Domestic Business Days before  the effective date for any Letter of Credit, the Borrower shall give the Letter of Credit  Issuer a written notice containing the original signature of an authorized officer or  





 






128  WBD (US) 57324867v5  employee of such Borrower.  Such notice shall be irrevocable and shall specify the  original face amount of the Letter of Credit requested (which original face amount shall  not be less than $100,000), the effective date (which day shall be a Domestic Business  Day) of issuance of such requested Letter of Credit, the date on which such requested  Letter of Credit is to expire, the amount of then outstanding Letter of Credit Obligations,  the purpose for which such Letter of Credit is to be issued, whether such Letter of Credit  may be drawn in single or partial draws and the Person for whose benefit the requested  Letter of Credit is to be issued.  (b) Issuance; Notice of Issuance.  If the conditions set forth in Sections 11.02 and 11.03 are satisfied, the Letter of Credit Issuer may in its sole discretion issue the  requested Letter of Credit.  The Letter of Credit Issuer shall give each Lender written  notice in substantially the form of Exhibit F, or telephonic notice confirmed promptly  thereafter in writing, of the issuance of a Letter of Credit and upon request shall deliver to  each Lender in connection with such notice a copy of the Letter of Credit issued by the  Letter of Credit Issuer.  (c) No Extension or Amendment.  The Letter of Credit Issuer shall not extend, renew or amend any Letter of Credit if the issuance of a new Letter of Credit having the  same terms as such Letter of Credit as so amended, renewed or extended would be  prohibited by Section 11.02.  (d) Auto-Extension Letter of Credit.  If the Borrower so requests in any applicable Letter of Credit Application Agreement, the Letter of Credit 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 Letter of Credit Issuer to prevent any such extension at  least once in each twelve-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-month period to be agreed upon at the  time such Letter of Credit is issued.  Unless otherwise directed by the Letter of Credit  Issuer, the Borrower shall not be required to make a specific request to the Letter of  Credit 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 Letter of  Credit 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 that the Letter of Credit  Issuer shall not permit any such extension if (A) the Letter of Credit 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 Section 11.03 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) Domestic  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 the Borrower that one or more of the applicable  conditions specified in Section 3.02 is not then satisfied, and in each such case directing  the Letter of Credit Issuer not to permit such extension.  





 






129  WBD (US) 57324867v5  SECTION 11.05. Reimbursement Obligations; Duties of the Letter of Credit Issuer.  (a) Reimbursement.  Notwithstanding any provisions to the contrary in any Letter of Credit Application Agreement:  (i) the Borrower shall reimburse the Letter of Credit Issuer for drawings under a Letter of Credit issued by it no later than one (1) Domestic  Business Day after the payment by the Letter of Credit Issuer;   (ii) any Reimbursement Obligation with respect to any Letter of Credit shall bear interest from the date of the relevant drawing under the pertinent Letter  of Credit until the date of payment in full thereof at a rate per annum equal to the  Default Rate; and  (iii) in order to implement the foregoing, upon the occurrence of a draw under any Letter of Credit, unless the Letter of Credit Issuer is reimbursed in  accordance with subsection (i) above, the Borrower irrevocably authorizes the  Letter of Credit Issuer and the Administrative Agent to treat such nonpayment as  a Notice of Borrowing in the amount of such Reimbursement Obligation and the  Lenders to make Advances to Borrower in such amount regardless of whether the  conditions precedent to the making of Advances hereunder have been met.  The  Borrower further authorizes the Administrative Agent to credit the proceeds of  such Advance so as to immediately eliminate the liability of the Borrower for  Reimbursement Obligations under such Letter of Credit.  (b) Duties of the Letter of Credit Issuer.  (i) Any action taken or omitted to be taken by the Letter of Credit Issuer in connection with any Letter of Credit, if taken or  omitted in the absence of willful misconduct or gross negligence (as determined by a  court of competent jurisdiction in a final and non-appealable decision), shall not put the  Letter of Credit Issuer under any resulting liability to any Lender or any Loan Party, or  assuming that the conditions have been satisfied as specified in Sections 11.02 and 11.03,  relieve that Lender of its obligations hereunder to the Letter of Credit Issuer.    (i) In determining whether to pay under any Letter of Credit, the parties agree that, with respect to drafts, demands or other documents presented  which appear on their face to be in substantial compliance with the terms of a  Letter of Credit, the Letter of Credit Issuer may, in its sole discretion, either  accept and make payment upon such documents without responsibility for further  investigation, regardless of any notice or information to the contrary, or refuse to  accept and refuse to make payment upon such documents if such documents are  not in strict compliance with the terms of such Letter of Credit.  (ii) The Letter of Credit 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 Letter of Credit Issuer shall have all of the benefits and  immunities (A) provided to the Administrative Agent in Article VII with respect  to any acts taken or omissions suffered by the Letter of Credit Issuer in  connection with Letters of Credit issued by it or proposed to be issued by it and  





 






  130  WBD (US) 57324867v5  Letter of Credit Application pertaining to such Letters of Credit as fully as if the  term “Administrative Agent” as used in Article VII included the Letter of Credit  Issuer with respect to such acts or omissions, and (B) as additionally provided  herein with respect to the Letter of Credit Issuer.  SECTION 11.06. Participations.  (a) Purchase of Participations.  Immediately upon issuance of any Letter of  Credit (or any amendment renewal or extension thereof) by the Letter of Credit Issuer in  accordance with the procedures set forth in this Article XI and without any further action  on the part of the Letter of Credit Issuer or the Lenders, each Lender shall be deemed to  have irrevocably and unconditionally purchased and received from the Letter of Credit  Issuer, without recourse or warranty, an undivided interest and participation, to the extent  of such Lender’s ratable share of the aggregate Revolver Commitments, in such Letter of  Credit.  Each Lender acknowledges and agrees that its obligation to acquire participations  pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional  and shall not be affected by any circumstance whatsoever, including any amendment,  renewal or extension of any Letter of Credit or the occurrence and continuance of a  Default or reduction or termination of the Commitments, and that each such payment  shall be made without any offset, abatement, withholding or reduction whatsoever.  (b) Sharing of Letter of Credit Payments.  In the event that the Letter of Credit  Issuer makes any payment under any Letter of Credit for which the Borrower shall not  have repaid such amount to the Letter of Credit Issuer pursuant to Section 11.07 or which  cannot be paid by an Advance pursuant to subsection (iii) of Section 11.05(a), the Letter  of Credit Issuer shall promptly notify each Lender of such failure, and each Lender shall  promptly and unconditionally pay to the Letter of Credit Issuer such Lender's ratable  share of the amount of such payment in Dollars and in same day funds.  If the Letter of  Credit Issuer so notifies such Lender prior to 10:00 A.M. (Atlanta, Georgia time) on any  Domestic Business Day, such Lender shall make available to the Letter of Credit Issuer  its ratable share of the amount of such payment on such Domestic Business Day in same  day funds and otherwise on the next succeeding Domestic Business Day.  If and to the  extent such Lender shall not have so made its ratable share of the amount of such  payment available to the Letter of Credit Issuer, such Lender agrees to pay to the Letter  of Credit Issuer forthwith on demand such amount together with interest thereon, for each  day from the date such payment was first due until the date such amount is paid to the  Letter of Credit Issuer at the Federal Funds Rate for the first three (3) days and thereafter  at the Base Rate.  The failure of any Lender to make available to the Letter of Credit  Issuer its ratable share of any such payment shall neither relieve nor increase the  obligation of any other Lender hereunder to make available to the Letter of Credit Issuer  its ratable share of any payment on the date such payment is to be made.  (c) Sharing of Reimbursement Obligation Payments.  Whenever the Letter of  Credit Issuer receives a payment on account of a Reimbursement Obligation, including  any interest thereon, as to which the Letter of Credit Issuer has received any payments  from the Lenders pursuant to this Section 11.06, it shall promptly pay to each Lender  which has funded its participating interest therein, in Dollars and in the kind of funds so  received, an amount equal to such Lender’s ratable share thereof.  Each such payment  





 






131  WBD (US) 57324867v5  shall be made by the Letter of Credit Issuer on the Domestic Business Day on which the  funds are paid to such Person, if received prior to 10:00 A.M. (Atlanta, Georgia time) on  such Domestic Business Day, and otherwise on the next succeeding Domestic Business  Day.  (d) Documentation.  Upon the request of any Lender, the Letter of Credit Issuer shall furnish to such Lender copies of any Letter of Credit, Letter of Credit  Application Agreement and other documentation relating to Letters of Credit issued  pursuant to this Agreement.  (i) Obligations Irrevocable.  The obligations of the Lenders to make payments to the Letter of Credit Issuer with respect to a Letter of Credit shall be  irrevocable, not subject to any condition, qualification or exception whatsoever  and shall be made in accordance with, but not subject to, the terms and conditions  of this Agreement under all circumstances (assuming that the Letter of Credit  Issuer has issued such Letter of Credit in accordance with Sections 11.02 and  11.03) by including, without limitation, any of the following circumstances:  (ii) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;  (iii) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of Credit  or any transferee of any Letter of Credit (or any Person for whom any such  transferee may be acting), the Letter of Credit Issuer, the Administrative Agent,  any Lender or any other Person, whether in connection with this Agreement, any  Letter of Credit, the transactions contemplated herein or any unrelated  transactions;  (iv) any draft, certificate or any other document presented under the Letter of Credit proves to be forged, fraudulent, invalid or insufficient in any  respect or any statement therein being untrue or inaccurate in any respect;  (v) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;  (vi) payment by the Letter of Credit Issuer under any 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;  (vii) payment by the Letter of Credit Issuer under any Letter of Credit against presentation of any draft, certificate or any other document that does not  comply with the terms of such Letter of Credit, except payment resulting from the  gross negligence or willful misconduct of the Letter of Credit Issuer (as  determined by a court of competent jurisdiction in a final and nonappealable  decision); or  





 






132  WBD (US) 57324867v5  (viii) any other circumstances or happenings whatsoever, whether or not similar to any of the foregoing, except circumstances or happenings resulting  from the gross negligence or willful misconduct of the Letter of Credit Issuer (as  determined by a court of competent jurisdiction in a final and nonappealable  decision).  SECTION 11.07. Payment of Reimbursement Obligations.  (a) Payments to Letter of Credit Issuer.  The Borrower agrees to pay to the Letter of Credit Issuer the amount of all Reimbursement Obligations, interest and other  amounts payable to the Letter of Credit Issuer under or in connection with any Letter of  Credit issued for such Borrower's account immediately when due.  The Borrower’s  obligations hereunder shall be absolute, unconditional and irrevocable and shall be  performed strictly in accordance with the terms of this Agreement under any and all  circumstances whatsoever and irrespective of:  (i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;  (ii) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of Credit  or any transferee of any Letter of Credit (or any Person for whom any such  transferee may be acting), the Letter of Credit Issuer, the Administrative Agent,  any Lender or any other Person, whether in connection with this Agreement, any  Letter of Credit, the transactions contemplated herein or any unrelated  transactions;  (iii) any draft, certificate or any other document presented under the Letter of Credit proves 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) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;  (v) payment by the Letter of Credit Issuer under any 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;  (vi) payment by the Letter of Credit Issuer under any Letter of Credit against presentation of any draft or certificate that does not comply with the terms  of such Letter of Credit, except payment resulting from the gross negligence or  willful misconduct of the Letter of Credit Issuer (as determined by a court of  competent jurisdiction in a final and non-appealable decision); or  (vii) any other circumstances or happenings whatsoever, whether or not similar to any of the foregoing, except circumstances or happenings resulting  





 






133  WBD (US) 57324867v5  from the gross negligence or willful misconduct of the Letter of Credit Issuer (as  determined by a court of competent jurisdiction in a final and non-appealable  decision).  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 promptly notify  the Letter of Credit Issuer.  The Borrower shall be conclusively deemed to have waived  any such claim against the Letter of Credit Issuer and its correspondents unless such  notice is given as aforesaid.  (b) Recovery or Avoidance of Payments.  In the event any payment by or on behalf of the Borrower received by the Letter of Credit Issuer with respect to a Letter of  Credit and distributed by the Letter of Credit Issuer to the Lenders on account of their  participations is thereafter set aside, avoided or recovered from the Letter of Credit Issuer  in connection with any receivership, liquidation or bankruptcy proceeding, each Lender  that received such distribution shall, upon demand by the Letter of Credit Issuer,  contribute such Lender's ratable share of the amount set aside, avoided or recovered  together with interest at the rate required to be paid by the Letter of Credit Issuer upon  the amount required to be repaid by it.  SECTION 11.08. Replacement of the Letter of Credit Issuer.  The Letter of Credit  Issuer may be replaced at any time by written agreement among the Borrower, the  Administrative Agent, the replaced Letter of Credit Issuer and the successor Letter of Credit  Issuer.  The Administrative Agent shall notify the Lenders of any such replacement of the Letter  of Credit Issuer.  At the time any such replacement shall become effective, the Borrower shall  pay all unpaid fees accrued for the account of the replaced Letter of Credit Issuer pursuant to  Section 2.07(b) and (c).  From and after the effective date of any such replacement, (i) the  successor Letter of Credit Issuer shall have all the rights and obligations of the Letter of Credit  Issuer under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)  references herein to the term “Letter of Credit Issuer” shall be deemed to refer to such successor  or to any previous Letter of Credit Issuer, or to such successor and all previous Letter of Credit  Issuers, as the context shall require.  After the replacement of a Letter of Credit Issuer hereunder,  the replaced Letter of Credit Issuer shall remain a party hereto and shall continue to have all the  rights and obligations of a Letter of Credit Issuer under this Agreement with respect to Letters of  Credit issued by it prior to such replacement, but shall not be required to issue additional Letters  of Credit.  SECTION 11.09. Cash Collateralization. Upon the request of the Administrative  Agent, (a) if the Letter of Credit Issuer has honored any full or partial drawing request under any  Letter of Credit and such drawing has resulted in a Reimbursement Obligation that the Borrower  has not repaid, or (b) if, as of the date that is thirty (30) days prior to the Letter of Credit  Expiration Date, any Letter of Credit Obligation for any reason remains outstanding, the  Borrower shall, in each case, immediately Cash Collateralize the then outstanding amounts of all  Letter of Credit Obligations as of such date plus any accrued and unpaid interest thereon in the  manner provided in Section 6.03; provided, that, in the case of each of clauses (a) and (b), the  Borrower shall be permitted to Cash Collateralize such Letter of Credit Obligations using Swing  





 






134  WBD (US) 57324867v5  Advances or Revolver Advances to the extent available to the Borrower in accordance with this  Agreement.  SECTION 11.10. Assumption of Risk; Exoneration.  (a) Assumption of Risk by Borrower.  As among the Borrower, the Letter of Credit Issuer, the Administrative Agent and the Lenders, and in the absence of gross  negligence or willful misconduct (as determined by a court of competent jurisdiction in a  final and non-appealable decision) by any of the Letter of Credit Issuer, Administrative  Agent and the Lenders, the Borrower assumes all risks of the acts and omissions of, or  misuse of the Letters of Credit issued for such Borrower's account by, the respective  beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the  foregoing, the Letter of Credit Issuer, the Administrative Agent and the Lenders shall not  be responsible (provided they did not commit gross negligence or willful misconduct as  determined by a court of competent jurisdiction in a final and non-appealable decision)  for (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any  document submitted by any party in connection with the application for and issuance of  the Letters of Credit, even if it should in fact prove to be in any or all respects invalid,  insufficient, inaccurate, fraudulent or forged, (ii) 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) failure of the beneficiary of a Letter  of Credit to comply duly with conditions required in order to draw upon such Letter of  Credit, (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,  for errors in interpretation of technical terms, (v) any loss or delay in the transmission or  otherwise of any document required in order to make a drawing under any Letter of  Credit or of the proceeds thereof, (vi) the misapplication by the beneficiary of a Letter of  Credit of the proceeds of any drawing under such Letter of Credit; and (vii) any  consequences arising from causes beyond the control of the Letter of Credit Issuer, the  Administrative Agent and the Lenders.  (b) Exoneration.  In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Letter of  Credit Issuer under or in connection with the Letters of Credit or any related certificates  if taken or omitted in good faith and with reasonable care, shall not put the Letter of  Credit Issuer, the Administrative Agent or any Lender under any resulting liability to the  Borrower or relieve the Borrower of any of its obligations hereunder to any such Person.  [Remainder of page intentionally left blank]  





 






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12  WBD (US) 59102819v5 EXHIBIT B  Schedule 2.01  Revolver Commitments  Lender Revolver Commitment  Truist Bank $75,000,000.00  City National Bank of West Virginia $30,000,000.00  The Huntington National Bank $22,500,000.00  United Bank, a Virginia Banking  Corporation  $22,500,000.00  Total $150,000,000.00  





 






13  WBD (US) 59102819v5 EXHIBIT C  Schedule 4.26  Existing Indebtedness; Future Liens  Debt Principal Outstanding  4.20% Senior Notes, Series  A, due December 20, 2027  $40,000,000  4.27% Senior Notes, Series  B, due December 20, 2029  $20,000,000  4.41% Senior Notes, Series  C, due December 20, 2032  $40,000,000  3.50% Senior Notes, Series  D, due December 20, 2034  $40,000,000  4.49% Senior Notes, Series E,  due August 16, 2052  $40,000,000