thirdarcreditagreement-a






Execution Version  5700661  4870-4966-3030  Revolving Facility CUSIP Number: 01131DAG6  Term Facility CUSIP Number: 01131DAH4  Published CUSIP Number: 01131DAF8    THIRD AMENDED AND RESTATED  CREDIT AGREEMENT  Dated as of October 28, 2022  among  ALAMO GROUP INC.,  as the Borrower,  CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,  as the Guarantors,  BANK OF AMERICA, N.A.,  as Administrative Agent, Swingline Lender and  L/C Issuer,  and  THE LENDERS PARTY HERETO  WELLS FARGO BANK, NATIONAL ASSOCIATION,  and  PNC BANK, NATIONAL ASSOCIATION,  as Co-Syndication Agents    TD BANK, N.A,  as Documentation Agent    and    BOFA SECURITIES, INC.,  and  WELLS FARGO SECURITIES, LLC,  as Joint Lead Arrangers and Joint Bookrunners  





 






  ii  TABLE OF CONTENTS  Page  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ...................................................................... 1  1.01  Defined Terms ................................................................................................................... 1  1.02  Other Interpretive Provisions ........................................................................................ 34  1.03  Accounting Terms ........................................................................................................... 35  1.04  Rounding.......................................................................................................................... 36  1.05  Times of Day .................................................................................................................... 36  1.06  Letter of Credit Amounts. .............................................................................................. 36  1.07  UCC Terms ...................................................................................................................... 36  1.08  Exchange Rates; Currency Equivalents. ...................................................................... 36  1.09  Additional Alternative Currencies ................................................................................ 37  ARTICLE II COMMITMENTS AND CREDIT EXTENSIONS .............................................................. 38  2.01  Loans ................................................................................................................................ 38  2.02  Borrowings, Conversions and Continuations of Loans ............................................... 38  2.03  Letters of Credit. ............................................................................................................. 40  2.04  Swingline Loans. ............................................................................................................. 49  2.05  Prepayments .................................................................................................................... 52  2.06  Termination or Reduction of Commitments ................................................................ 54  2.07  Repayment of Loans ....................................................................................................... 54  2.08  Interest and Default Rate ............................................................................................... 56  2.09  Fees ................................................................................................................................... 56  2.10  Computation of Interest and Fees; Retroactive Adjustments of Applicable  Rate .................................................................................................................................. 57  2.11  Evidence of Debt ............................................................................................................. 58  2.12  Payments Generally; Administrative Agent’s Clawback ............................................ 58  2.13  Sharing of Payments by Lenders. .................................................................................. 60  2.14  Cash Collateral. ............................................................................................................... 61  2.15  Defaulting Lenders. ........................................................................................................ 62  2.16  Incremental Facilities ..................................................................................................... 65  ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY ....................................................... 68  3.01  Taxes. ............................................................................................................................... 68  3.02  Illegality ........................................................................................................................... 72  3.03  Inability to Determine Rates .......................................................................................... 72  3.04  Increased Costs. .............................................................................................................. 74  3.05  Compensation for Losses ................................................................................................ 76  3.06  Mitigation Obligations; Replacement of Lenders. ....................................................... 76  3.07  Survival ............................................................................................................................ 77  ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS .............................................. 77  4.01  Conditions of Initial Credit Extension .......................................................................... 77  4.02  Conditions to all Credit Extensions ............................................................................... 79  ARTICLE V REPRESENTATIONS AND WARRANTIES ..................................................................... 79  5.01  Existence, Qualification and Power ............................................................................... 80  5.02  Authorization; No Contravention ................................................................................. 80  5.03  Governmental Authorization; Other Consents ............................................................ 80  5.04  Binding Effect. ................................................................................................................. 80  5.05  Financial Statements; No Material Adverse Effect ..................................................... 80  





 






iii  5.06  Litigation.......................................................................................................................... 81  5.07  No Default ........................................................................................................................ 81  5.08  Ownership of Property ................................................................................................... 81  5.09  Environmental Matters. ................................................................................................. 82  5.10  Insurance ......................................................................................................................... 83  5.11  Taxes ................................................................................................................................ 83  5.12  ERISA Compliance. ........................................................................................................ 83  5.13  Margin Regulations; Investment Company Act .......................................................... 84  5.14  Disclosure ......................................................................................................................... 84  5.15  Compliance with Laws ................................................................................................... 84  5.16  Solvency ........................................................................................................................... 85  5.17  Casualty, Etc .................................................................................................................... 85  5.18  Sanctions Concerns and Anti-Corruption Laws .......................................................... 85  5.19  Responsible Officers ....................................................................................................... 85  5.20  Subsidiaries; Equity Interests; Loan Parties ................................................................ 85  5.21  Intellectual Property ....................................................................................................... 86  5.22  Affected Financial Institutions. ...................................................................................... 86  5.23  Covered Entities .............................................................................................................. 86  5.24  Beneficial Ownership Certification ............................................................................... 87  5.25  Labor Matters ................................................................................................................. 87  ARTICLE VI AFFIRMATIVE COVENANTS ......................................................................................... 87  6.01  Financial Statements. ...................................................................................................... 87  6.02  Certificates; Other Information .................................................................................... 88  6.03  Notices .............................................................................................................................. 90  6.04  Payment of Obligations .................................................................................................. 91  6.05  Preservation of Existence, Etc ....................................................................................... 91  6.06  Maintenance of Properties ............................................................................................. 91  6.07  Maintenance of Insurance .............................................................................................. 91  6.08  Compliance with Laws ................................................................................................... 91  6.09  Books and Records .......................................................................................................... 92  6.10  Inspection Rights ............................................................................................................. 92  6.11  Use of Proceeds ................................................................................................................ 92  6.12  Material Contracts .......................................................................................................... 92  6.13  Covenant to Guarantee Obligations .............................................................................. 92  6.14  Compliance with Environmental Laws ......................................................................... 93  6.15  Anti-Corruption Laws; Sanctions. ................................................................................ 93  ARTICLE VII NEGATIVE COVENANTS ............................................................................................... 93  7.01  Liens ................................................................................................................................. 93  7.02  Indebtedness .................................................................................................................... 95  7.03  Investments ...................................................................................................................... 96  7.04  Fundamental Changes .................................................................................................... 97  7.05  Dispositions ...................................................................................................................... 97  7.06  Restricted Payments ....................................................................................................... 98  7.07  Change in Nature of Business ........................................................................................ 98  7.08  Transactions with Affiliates ........................................................................................... 98  7.09  Burdensome Agreements................................................................................................ 98  7.10  Use of Proceeds ................................................................................................................ 99  7.11  Financial Covenants ....................................................................................................... 99  7.12  Amendments of Organization Documents; Fiscal Year; Legal Name, State  of Formation; Form of Entity and Accounting Changes. ............................................ 99  





 






iv  7.13  Sale and Leaseback Transactions ................................................................................ 100  7.14  Sanctions ........................................................................................................................ 100  7.15  Anti-Corruption Laws .................................................................................................. 100  7.16  Negative Pledge ............................................................................................................. 100  ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES .................................................................. 100  8.01  Events of Default. .......................................................................................................... 100  8.02  Remedies upon Event of Default ................................................................................. 102  8.03  Application of Funds .................................................................................................... 103  ARTICLE IX ADMINISTRATIVE AGENT ........................................................................................... 104  9.01  Appointment and Authority ........................................................................................ 104  9.02  Rights as a Lender ........................................................................................................ 104  9.03  Exculpatory Provisions ................................................................................................. 105  9.04  Reliance by Administrative Agent ............................................................................... 106  9.05  Delegation of Duties ...................................................................................................... 106  9.06  Resignation of Administrative Agent .......................................................................... 106  9.07  Non-Reliance on Administrative Agent, the Arrangers and Other Lenders ........... 108  9.08  No Other Duties, Etc ..................................................................................................... 108  9.09  Administrative Agent May File Proofs of Claim ........................................................ 109  9.10  Guaranty Matters. ........................................................................................................ 109  9.11  Specified Cash Management Agreements and Specified Hedge Agreements ......... 110  9.12  Certain ERISA Matters. ............................................................................................... 110  9.13  Recovery of Erroneous Payments. ............................................................................... 111  ARTICLE X CONTINUING GUARANTY ............................................................................................ 111  10.01  Guaranty. ....................................................................................................................... 111  10.02  Rights of Lenders .......................................................................................................... 112  10.03  Certain Waivers ............................................................................................................ 112  10.04  Obligations Independent .............................................................................................. 112  10.05  Subrogation ................................................................................................................... 113  10.06  Termination; Reinstatement ........................................................................................ 113  10.07  Stay of Acceleration ...................................................................................................... 113  10.08  Condition of Borrower ................................................................................................. 113  10.09  Appointment of Borrower ............................................................................................ 113  10.10  Right of Contribution ................................................................................................... 114  10.11  Keepwell. ........................................................................................................................ 114  ARTICLE XI MISCELLANEOUS .......................................................................................................... 114  11.01  Amendments, Etc .......................................................................................................... 114  11.02  Notices; Effectiveness; Electronic Communications. ................................................. 117  11.03  No Waiver; Cumulative Remedies; Enforcement ...................................................... 119  11.04  Expenses; Indemnity; Damage Waiver. ...................................................................... 119  11.05  Payments Set Aside ....................................................................................................... 121  11.06  Successors and Assigns ................................................................................................. 122  11.07  Treatment of Certain Information; Confidentiality. ................................................. 126  11.08  Right of Setoff. ............................................................................................................... 128  11.09  Interest Rate Limitation ............................................................................................... 128  11.10  Integration; Effectiveness. ............................................................................................ 128  11.11  Survival of Representations and Warranties. ............................................................ 129  11.12  Severability .................................................................................................................... 129  11.13  Replacement of Lenders. .............................................................................................. 129  11.14  Governing Law; Jurisdiction; Etc. .............................................................................. 130  





 






v  11.15  Waiver of Jury Trial. .................................................................................................... 131  11.16  Subordination ................................................................................................................ 131  11.17  No Advisory or Fiduciary Responsibility ................................................................... 132  11.18  Electronic Execution; Electronic Records; Counterparts ......................................... 132  11.19  USA Patriot Act Notice. ................................................................................................ 133  11.20  Acknowledgement and Consent to Bail-In of Affected Financial  Institutions. .................................................................................................................... 134  11.21  Acknowledgement Regarding Any Supported QFCs. ............................................... 134  11.22  Amendment and Restatement; No Novation .............................................................. 135  11.23  Time of the Essence ....................................................................................................... 136  11.24  ENTIRE AGREEMENT .............................................................................................. 136     





 






vi  BORROWER PREPARED SCHEDULES  Schedule 1.01(c) Responsible Officers  Schedule 5.12 Pension Plans  Schedule 5.20(a) Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments  Schedule 5.20(b) Loan Parties  Schedule 5.25 Labor Matters  Schedule 7.01 Existing Liens  Schedule 7.02 Existing Indebtedness  Schedule 7.03 Existing Investments    ADMINISTRATIVE AGENT PREPARED SCHEDULES  Schedule 1.01(a)  Certain Addresses for Notices  Schedule 1.01(b)  Initial Commitments and Applicable Percentages  Schedule 1.01(d)  Existing Letters of Credit  Schedule 2.01 Swingline Commitments  Schedule 2.03 Letter of Credit Commitments    EXHIBITS  Exhibit A Form of Administrative Questionnaire  Exhibit B Form of Assignment and Assumption  Exhibit C Form of Compliance Certificate  Exhibit D Form of Joinder Agreement  Exhibit E Form of Loan Notice  Exhibit F Form of Permitted Acquisition Certificate  Exhibit G Form of Revolving Note  Exhibit H Form of Specified Party Designation Notice  Exhibit I Form of Swingline Loan Notice  Exhibit J Form of Term Note  Exhibit K Form of Incremental Term Note   Exhibit L Forms of U.S. Tax Compliance Certificates  Exhibit M Form of Authorization to Share Insurance Information  Exhibit N Form of Notice of Loan Prepayment  





 






  1  THIRD AMENDED AND RESTATED CREDIT AGREEMENT  This THIRD AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of  October 28, 2022, among ALAMO GROUP INC., a Delaware corporation (the “Borrower”), the  Guarantors (defined herein), the Lenders (defined herein), and BANK OF AMERICA, N.A., as  Administrative Agent, Swingline Lender and L/C Issuer.  PRELIMINARY STATEMENTS:  WHEREAS, the Borrower is party to that certain Second Amended and Restated Credit  Agreement, dated as of October 24, 2019, by and among the Borrower, the Guarantors (as defined therein),  the lenders party thereto and the Administrative Agent (as amended, restated, supplemented or otherwise  modified from time to time prior to the date hereof, the “Existing Credit Agreement”).  WHEREAS, the Loan Parties (as hereinafter defined) have requested that the Lenders, the  Swingline Lender and the L/C Issuer amend and restate the Existing Credit Agreement, and make loans and  other financial accommodations to the Loan Parties in an aggregate amount of up to $655,000,000 to pay  fees and expenses incurred in connection with the Transactions (as defined herein), and to finance other  working capital needs and general corporate purposes of the Borrower and its Subsidiaries.  WHEREAS, the Lenders, the Swingline Lender and the L/C Issuer have agreed to make such loans  and other financial accommodations to the Loan Parties on the terms and subject to the conditions set forth  herein.  NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained,  the parties hereto covenant and agree as follows:  ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS  1.01 Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:  “Acquisition” means the acquisition, whether through a single transaction or a series of related  transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person  (including the purchase of an option, warrant or convertible or similar type security to acquire such a  controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such  equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of  securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all  or substantially all of the assets of such Person or of a division, line of business or other business unit of  such Person.  “Additional Guaranteed Obligations” means (a) all obligations arising under Specified Cash  Management Agreements and Specified Hedge Agreements and (b) all costs and expenses incurred in  connection with enforcement and collection of the foregoing, including the fees, charges and disbursements  of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or  contingent, due or to become due, now existing or hereafter arising and including interest, expenses and  fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any  proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless  





 






2  of whether such interest, expenses and fees are allowed claims in such proceeding; provided that Additional  Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such  Guarantor.  “Additional Lender” has the meaning specified in Section 2.16(b).  “Administrative Agent” means Bank of America in its capacity as administrative agent under any  of the Loan Documents, or any successor administrative agent.  “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may  from time to time notify the Borrower and the Lenders.  “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form  of Exhibit A or any other form approved by the Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified.  “Aggregate Commitments” means the Commitments of all the Lenders.  “Agreement” means this Third Amended and Restated Credit Agreement, including all schedules,  exhibits and annexes hereto.  “Alternative Currency” means Australian Dollars and each other currency (other than Dollars) that  is approved in accordance with Section 1.09; provided that for each Alternative Currency, such requested  currency is an Eligible Currency.  “Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in  Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the  Administrative Agent or the L/C Issuer, as the case may be, by reference to Bloomberg (or such other  publicly available service for displaying exchange rates), to be the exchange rate for the purchase of such  Alternative Currency with Dollars at approximately 11:00 a.m. on the date two (2) Business Days prior to  the date as of which the foreign exchange computation is made; provided, however, that if no such rate is  available, the “Alternative Currency Equivalent” shall be determined by the Administrative Agent or the  L/C Issuer, as the case may be, using any reasonable method of determination it deem appropriate in its  sole discretion (and such determination shall be conclusive absent manifest error).  “Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to  which such a Person is subject.  “Applicable Percentage” means (a) in respect of the Term Facility, with respect to any Term  Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented  by (i) on or prior to the Closing Date, such Term Lender’s Term Commitment at such time and  (ii) thereafter, the outstanding principal amount of such Term Lender’s Term Loans at such time, (b)  in  respect of an Incremental Term Facility, with respect to any Incremental Term Lender at any time, the  percentage (carried out to the ninth decimal place) of the Incremental Term Facility represented by (i) on  





 






3  or prior to the applicable Incremental Effective Date, such Incremental Term Lender’s Incremental Term  Commitment at such time and (ii) thereafter, the outstanding principal amount of such Incremental Term  Lender’s Incremental Term Loans at such time and (c) in respect of the Revolving Facility, with respect to  any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving  Facility represented by such Revolving Lender’s Revolving Commitment at such time, subject to  adjustment as provided in Section 2.15. If the Commitment of all of the Revolving Lenders to make  Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated  pursuant to Section 8.02, or if the Revolving Commitments have expired, then the Applicable Percentage  of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Applicable  Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving  effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of  determination. The Applicable Percentage of each Lender in respect of each Facility is set forth opposite  the name of such Lender on Schedule 1.01(b) or in the Assignment and Assumption pursuant to which such  Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.16,  as applicable.  “Applicable Rate” means, for any day, the rate per annum set forth below opposite the applicable  Level then in effect (based on the Consolidated Leverage Ratio), it being understood that the Applicable  Rate for (a) Revolving Loans that are Base Rate Loans shall be the percentage set forth under the column  “Revolving Loans” and “Base Rate”, (b) Revolving Loans that are Term SOFR Loans shall be the  percentage set forth under the column “Revolving Loans” and “Term SOFR & Letter of Credit Fee”, (c) that  portion of the Term Loan comprised of Base Rate Loans shall be the percentage set forth under the column  “Term Loan” and “Base Rate”, (d) that portion of the Term Loan comprised of Term SOFR Loans shall be  the percentage set forth under the column “Term Loan” and “Term SOFR & Letter of Credit Fee”, (e) the  Letter of Credit Fee shall be the percentage set forth under the column “Revolving Loans” and “Term SOFR  & Letter of Credit Fee”, and (f) the Commitment Fee shall be the percentage set forth under the column  “Commitment Fee”:  Applicable Rate  Level  Consolidated  Leverage  Ratio  Term SOFR  & Letter of Credit Fee  Base Rate  Commitment   Fee Revolving  Loans  Term Loan  Revolving  Loans  Term  Loan  1 ≤1.50:1.00 1.25% 1.25% 0.25% 0.25% 0.15%  2  >1.50:1.00 but  ≤2.00 to 1.00  1.50% 1.50% 0.50% 0.50% 0.15%  3  >2.00:1.00 but  ≤2.50 to 1.00  1.75% 1.75% 0.75% 0.75% 0.20%  4  >2.50:1.00 but  ≤3.00 to 1.00  2.00% 2.00% 1.00% 1.00% 0.25%  5 >3.00:1.00 2.50% 2.50% 1.50% 1.50% 0.30%          The Applicable Rate in respect of any Incremental Term Loan shall be as set forth in the  Incremental Agreement executed in connection therewith.  Any increase or decrease in the Applicable Rate  resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business  Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a);  provided, however, that if a Compliance Certificate is not delivered when due in accordance with Section  6.02(a), then, upon the request of the Required Lenders, Pricing Level 5 shall apply, in each case as of the  first Business Day after the date on which such Compliance Certificate was required to have been delivered  





 






4  and in each case shall remain in effect until the first Business Day following the date on which such  Compliance Certificate is delivered.  Notwithstanding anything to the contrary contained in this definition, (i) the determination of the  Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) and (ii) the initial  Applicable Rate shall be set at Pricing Level 3 until the first Business Day immediately following the date  a Compliance Certificate is delivered to the Administrative Agent pursuant to Section 6.02(a) for the fiscal  quarter ending December 31, 2022. Any adjustment in the Applicable Rate shall be applicable to all Credit  Extensions then existing or subsequently made or issued.  “Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such  Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.  “Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a  Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect  to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant  to Section 2.03, the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline  Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders.  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Arrangers” means, collectively, BofA Securities, Inc. and Wells Fargo Securities, LLC in their  respective capacities as joint lead arrangers and joint bookrunners.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender and  an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and  accepted by the Administrative Agent, in substantially the form of Exhibit B or any other form (including  an electronic documentation form generated by use of an electronic platform) approved by the  Administrative Agent.  “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any  Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of  such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized  amount of the remaining lease or similar payments under the relevant lease or other applicable agreement  or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance  with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease, (c) all  Synthetic Debt of such Person and (d) in respect of any Securitization Transaction, the outstanding principal  amount of such financing, after taking into account reserve accounts and making appropriate adjustments,  determined by the Administrative Agent in its reasonable judgment.  “Audited Financial Statements” means the audited Consolidated balance sheet of the Borrower and  its Subsidiaries for the fiscal year ended December 31, 2021, and the related Consolidated statements of  income or operations, Shareholders’ Equity and cash flows for such fiscal year of the Borrower and its  Subsidiaries, including the notes thereto.  “Australian Dollar” means the lawful currency of Australia.  “Authorization to Share Insurance Information” means the authorization substantially in the form  of Exhibit M (or such other form as required by each of the Loan Party’s insurance companies).  





 






5  “Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b).  “Availability Period” means in respect of the Revolving Facility, the period from and including the  Closing Date to the earliest of (i) the Maturity Date for the Revolving Facility, (ii) the date of termination  of the Revolving Commitments pursuant to Section 2.06, and (iii) the date of termination of the  Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the L/C Issuer  to make L/C Credit Extensions pursuant to Section 8.02.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union,  the implementing law, rule, regulation or requirement for such EEA Member Country from time to time  which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law,  regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks,  investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).  “Bank of America” means Bank of America, N.A. and its successors.  “Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of  (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced  from time to time by Bank of America as its “prime rate”, and (c) Term SOFR plus 1.00%, subject to the  interest rate floors set forth therein; provided that if the Base Rate shall be less than zero, such rate shall be  deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon  various factors including Bank of America’s costs and desired return, general economic conditions and  other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or  below such announced rate. Any change in such prime rate announced by Bank of America shall take effect  at the opening of business on the day specified in the public announcement of such change. If the Base Rate  is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the  greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.  “Base Rate Loan” means a Revolving Loan, a Term Loan or an Incremental Term Loan that bears  interest based on the Base Rate.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership required  by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person  whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA  or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.  “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.  “Borrower” has the meaning specified in the introductory paragraph hereto.  





 






6  “Borrower Materials” has the meaning specified in Section 6.02.  “Borrowing” means a Revolving Borrowing, a Swingline Borrowing or a Term Borrowing, as the  context may require.  “BTFG Receivables Facility” means that certain Revolving Uncommitted Receivables Purchase  Agreement dated as of August 7, 2018, by and among Morbark, LLC, a Michigan limited liability company  and a Guarantor hereunder (the “Receivable Seller”), and BTFG Trust, a Delaware statutory trust acting  with respect to a series of such trust known as Series 2018-1 (the “Receivable Purchaser”) as amended,  extended, renewed or otherwise modified from time to time, pursuant to which the Receivable Seller  finances a portion or all of the accounts receivable owing to it by the obligors set forth on Exhibit C thereto,  for which the aggregate amount of unpaid receivables outstanding at any time shall not exceed $9,500,000.  “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative  Agent’s Office is located.  “Capital Expenditures” means, with respect to any Person for any period, any expenditure in  respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements  and maintenance which are properly charged to current operations). For purposes of this definition, the  purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment or  with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount  by which such purchase price exceeds the credit granted by the seller of such equipment for the equipment  being traded in at such time or the amount of such insurance proceeds, as the case may be.  “Capitalized Lease” means any lease that has been or is required to be, in accordance with GAAP,  recorded, classified and accounted for as a capitalized lease or financing lease.  “Cash Collateralize” means to deposit in a Controlled Account or pledge and deposit with or  deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or Swingline  Lender (as applicable) or the Lenders, as collateral for L/C Obligations, the Obligations in respect of  Swingline Loans, or obligations of the Revolving Lenders to fund participations in respect of L/C  Obligations or Swingline Loans (as the context may require), (a) cash or deposit account balances, (b)  backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the  Administrative Agent and the L/C Issuer, and/or (c) if the Administrative Agent and the applicable  L/C Issuer or Swingline Lender shall agree, in their sole discretion, other credit support, in each case,  in Dollars and pursuant to documentation in form and substance satisfactory to the Administrative  Agent and the L/C Issuer or the Swingline Lender (as applicable).   “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the  proceeds of such Cash Collateral and other credit support.  “Cash Equivalents” means any of the following types of Investments, to the extent owned by the  Borrower or any of its Subsidiaries free and clear of all Liens (other than Permitted Liens):  (a) readily marketable obligations issued or directly and fully guaranteed or insured  by the United States or any agency or instrumentality thereof having maturities of not more than  three hundred sixty days (360) days from the date of acquisition thereof; provided that the full faith  and credit of the United States is pledged in support thereof;  





 






7  (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of,  any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States,  any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding  company organized under the laws of the United States, any state thereof or the District of  Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues)  commercial paper rated as described in clause (c) of this definition and (iii) has combined capital  and surplus of at least $500,000,000, in each case with maturities of not more than one hundred  eighty (180) days from the date of acquisition thereof;  (c) commercial paper issued by any Person organized under the laws of any state of  the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least  “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than one  hundred eighty (180) days from the date of acquisition thereof;   (d) Investments, classified in accordance with GAAP as current assets of the Borrower  or any of its Subsidiaries, in money market investment programs registered under the Investment  Company Act of 1940, which are administered by financial institutions that have the highest rating  obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to  Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this  definition; and  (e) any repurchase agreement entered into with any bank (or other commercial  banking institution of the stature referred to in clause (b)) which (i) is secured by a fully perfected  security interest in any obligation of the type described in any of clauses (a) through (c) and (ii) has  a market value at the time such repurchase agreement is entered into of not less than 100% of the  repurchase obligation of such bank (or other commercial banking institution) thereunder.  “Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to  provide treasury or cash management services, including deposit accounts, overnight draft, credit cards,  debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated  clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox,  account reconciliation and reporting and trade finance services and other cash management services.  “Cash Management Bank” means any Person in its capacity as a party to a Cash Management  Agreement that, (a) at the time it enters into a Cash Management Agreement with a Loan Party or any  Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender,  is a party to a Cash Management Agreement with a Loan Party or any Subsidiary, in each case in its capacity  as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s  Affiliate ceased to be a Lender); provided, however, that for any of the foregoing to be included as a  “Specified Cash Management Agreement” on any date of determination by the Administrative Agent, the  applicable Cash Management Bank (other than the Administrative Agent or an Affiliate of the  Administrative Agent) must have delivered a Specified Party Designation Notice to the Administrative  Agent prior to such date of determination.  “Cash Taxes” means for the Borrower and its Subsidiaries for any period, Taxes paid or due and  payable by them during such period.  “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act  of 1980.  





 






8  “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability  Information System maintained by the U.S. Environmental Protection Agency.  “CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code in  which the Borrower or any Loan Party is a United States shareholder within the meaning of Section 951(b)  of the Code.  “Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the  adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation  or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether  or not having the force of law) by any Governmental Authority; provided that notwithstanding anything  herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all  requests, rules, guidelines or directives thereunder or issued in connection therewith or in the  implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for  International Settlements, the Basel Committee on Banking Supervision (or any successor or similar  authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in  each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or  implemented.  “Change of Control” means an event or series of events by which:  (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the  Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its  subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or  administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and  13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to  have “beneficial ownership” of all securities that such person or group has the right to acquire,  whether such right is exercisable immediately or only after the passage of time (such right, an  “option right”)), directly or indirectly, of 35% or more of the equity securities of the Borrower  entitled to vote for members of the board of directors or equivalent governing body of the Borrower  on a fully-diluted basis (and taking into account all such securities that such “person” or “group”  has the right to acquire pursuant to any option right); or  (b) during any period of twelve (12) consecutive months, a majority of the members  of the board of directors or other equivalent governing body of the Borrower cease to be composed  of individuals (i) who were members of that board or equivalent governing body on the first day of  such period, (ii) whose election or nomination to that board or equivalent governing body was  nominated, appointed or approved by individuals referred to in clause (i) above constituting at the  time of such election or nomination at least a majority of that board or equivalent governing body  or (iii) whose election or nomination to that board or other equivalent governing body was  nominated, appointed or approved by individuals referred to in clauses (i) and (ii) above  constituting at the time of such election or nomination at least a majority of that board or equivalent  governing body; or  (c) the Borrower shall cease to own and control, of record and beneficially, directly or  indirectly, 100% of the Equity Interests of each Guarantor (excluding directors’ qualifying shares  required by Law) except as otherwise expressly permitted under this Agreement.  “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, are Revolving Loans, Term Loans or Incremental Term Loans and,  





 






9  when used in reference to any Commitment, refers to whether such Commitment is a Revolving  Commitment, Term Commitment or Incremental Term Commitment.  “Closing Date” means the date hereof.  “Closing Date Term Loans” has the meaning specified in Section 2.01(a).  “CME” means CME Group Benchmark Administration Limited.   “Code” means the Internal Revenue Code of 1986.  “Commitment” means a Term Commitment, an Incremental Term Commitment or a Revolving  Commitment, as the context may require.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as  amended from time to time, and any successor statute.  “Communication” means this Agreement, any Loan Document and any document, amendment,  approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to  any Loan Document.  “Compliance Certificate” means a certificate substantially in the form of Exhibit C.  “Conforming Changes” means, with respect to the use, administration of or any conventions  associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming  changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and “Interest Period”, timing and  frequency of determining rates and making payments of interest and other technical, administrative or  operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S.  Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or  continuation notices and length of lookback periods) as may be appropriate, in the discretion of the  Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit  the administration thereof by the Administrative Agent in a manner substantially consistent with market  practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is  not administratively feasible or that no market practice for the administration of such rate exists, in such  other manner of administration as the Administrative Agent determines is reasonably necessary in  connection with the administration of this Agreement and any other Loan Document).  “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by  net income (however denominated) or that are franchise Taxes or branch profits Taxes.  “Consolidated” means, when used with reference to financial statements or financial statement  items of the Borrower and its Subsidiaries or any other Person, such statements or items on a consolidated  basis in accordance with the consolidation principles of GAAP.  “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of  (a) (i) Operating Cash Flow, less (ii) Maintenance Capital Expenditures, to (b) the sum of (i) Interest  Expense, (ii) principal payments made with respect to Indebtedness For Borrowed Money, (iii) Cash Taxes,  and (iv) dividends paid in cash by the Borrower to its shareholders, in each case, of or by the Borrower and  its Subsidiaries for the most recently completed Measurement Period.  





 






10  “Consolidated Funded Debt” means, for any period, for the Borrower and its Subsidiaries on a  Consolidated basis, the sum of (a) the outstanding principal amount of all Indebtedness For Borrowed  Money, whether current or long-term, (including the Obligations), (b) the portion of obligations with respect  to Capitalized Leases that are capitalized in the Consolidated balance sheet of the Borrower and its  Subsidiaries, and (c) without duplication, all Guaranties with respect to outstanding principal amounts of  Indebtedness of the type specified in subsections (a) and (b) above of Persons other than the Borrower or  any of its Subsidiaries.  “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of  (a) Consolidated Funded Debt as of such date to (b) Operating Cash Flow of the Borrower and its  Subsidiaries on a Consolidated basis for the most recently completed Measurement Period.  “Consolidated Net Income” means, at any date of determination, the net income (or loss) of the  Borrower and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period;  provided that Consolidated Net Income shall exclude (a) unusual and infrequent gains and unusual and  infrequent losses for such Measurement Period, (b) the net income of any Subsidiary during such  Measurement Period to the extent that the declaration or payment of dividends or similar distributions by  such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents  or any agreement, instrument or Law applicable to such Subsidiary during such Measurement Period,  except that the Borrower’s equity in any net loss of any such Subsidiary for such Measurement Period shall  be included in determining Consolidated Net Income, and (c) any income (or loss) for such Measurement  Period of any Person if such Person is not a Subsidiary, except that the Borrower’s equity in the net income  of any such Person for such Measurement Period shall be included in Consolidated Net Income up to the  aggregate amount of cash actually distributed by such Person during such Measurement Period to the  Borrower or a Subsidiary as a dividend or other distribution (and in the case of a dividend or other  distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to the  Borrower as described in clause (b) of this proviso).  “Consolidated Total Liabilities” means, as of any date, the total liabilities that would be reflected  on the Consolidated balance sheet of the Borrower, prepared as of such date in accordance with GAAP.  “Contractual Obligation” means, as to any Person, any provision of any security issued by such  Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it  or any of its property is bound.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction  of the management or policies of a Person, whether through the ability to exercise voting power, by contract  or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.  “Controlled Account” means each deposit account and securities account that is subject to a  Qualifying Control Agreement.  “Cost of Acquisition” means, with respect to any Acquisition, as at the date of entering into any  agreement therefor, the sum of the following (without duplication): (a) the value of the Equity Interests of  the Borrower or any Subsidiary to be transferred in connection with such Acquisition, (b) the amount of  any cash and fair market value of other property (excluding property described in clause (a) and the unpaid  principal amount of any debt instrument) given as consideration in connection with such Acquisition, (c) the  amount (determined by using the face amount or the amount payable at maturity, whichever is greater) of  any Indebtedness incurred, assumed or acquired by the Borrower or any Subsidiary in connection with such  Acquisition, (d) all additional purchase price amounts in the form of earnouts and other contingent  obligations that should be recorded on the financial statements of the Borrower and its Subsidiaries in  





 






11  accordance with GAAP in connection with such Acquisition, (e) all amounts paid in respect of covenants  not to compete and consulting agreements that should be recorded on the financial statements of the  Borrower and its Subsidiaries in accordance with GAAP, and other affiliated contracts in connection with  such Acquisition, and (f) the aggregate fair market value of all other consideration given by the Borrower  or any Subsidiary in connection with such Acquisition. For purposes of determining the Cost of Acquisition  for any transaction, the Equity Interests of the Borrower shall be valued in accordance with GAAP.  “Covered Entity” means any of the following:  (a) a “covered entity” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 382.2(b).  “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.  “Daily Simple SOFR”  with respect to any applicable determination date means the SOFR published  on such date by the Federal Reserve Bank of New York (or any successor source).  “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other  applicable jurisdictions from time to time in effect.  “Default” means any event or condition that constitutes an Event of Default or that, with the giving  of any notice, the passage of time, or both, would be an Event of Default.  “Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per  annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to  any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus  the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to  the fullest extent permitted by Applicable Law.  “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.  “Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all  or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded  hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such  failure is the result of such Lender’s 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 L/C Issuer, the Swingline Lender  or any other Lender any other amount required to be paid by it hereunder (including in respect of its  participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due,  (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing  that it does not intend to comply with its funding obligations hereunder, or has made a public statement to  that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan  hereunder and states that such position is based on such Lender’s determination that a condition precedent  to funding (which condition precedent, together with any applicable default, shall be specifically identified  in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after  written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative  Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided  that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such  





 






12  written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect  parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had  appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of  creditors or similar Person charged with reorganization or liquidation of its business or assets, including the  Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a  capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting  Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct  or indirect parent company thereof by a Governmental Authority so long as such ownership interest does  not result in or provide such Lender with immunity from the jurisdiction of courts within the United States  or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such  Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with  such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under  any one or more of clauses (a) through (d) above, and the effective date of such status, shall be conclusive  and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to  Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such  determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the  Swingline Lender and each other Lender promptly following such determination.  “Designated Jurisdiction” means any country or territory to the extent that such country or territory  is the subject of any Sanction.  “Disposed Asset Operating Cash Flow” means with respect to each Disposition of a Person or all  or substantially all of a line of business consummated during any Measurement Period, the actual Operating  Cash Flow attributable to such Person or such line of business during such Measurement Period on a pro  forma basis as if such Disposition occurred on the first day of such Measurement Period.   “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including  any Sale and Leaseback Transaction) of any property by any Loan Party or Subsidiary (or the granting of  any option or other right to do any of the foregoing), 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.  “Dollar” and “$” mean lawful money of the United States.  “Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if such amount  is expressed in Dollars, such amount, (b) if such amount is expressed in an Alternative Currency, the  equivalent of such amount in Dollars determined by using the rate of exchange for the purchase of Dollars  with the Alternative Currency last provided (either by publication or otherwise provided to the  Administrative Agent or the L/C Issuer, as applicable) by the applicable Bloomberg source (or such other  publicly available source for displaying exchange rates) on date that is two (2) Business Days immediately  preceding the date of determination (or if such service ceases to be available or ceases to provide such rate  of exchange, the equivalent of such amount in Dollars as determined by the Administrative Agent or the  L/C Issuer, as applicable using any method of determination it deems appropriate in its sole discretion) and  (c) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as  determined by the Administrative Agent or the L/C Issuer, as applicable, using any method of determination  it deems appropriate in its sole discretion. Any determination by the Administrative Agent or the L/C Issuer  pursuant to clauses (b) or (c) above shall be conclusive absent manifest error.  “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States,  any state thereof or the District of Columbia.  





 






13  “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.  “Electronic Copy” shall have the meaning specified in Section 11.18.  “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them,  respectively, by 15 USC §7006, as it may be amended from time to time.  “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section  11.06 (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).  “Eligible Currency” means any lawful currency other than Dollars that is readily available, freely  transferable and convertible into Dollars in the international interbank market available to the L/C Issuer  and as to which a Dollar Equivalent may be readily calculated.  If, after the designation by the L/C Issuer  of any currency as an Alternative Currency, any change in currency controls or exchange regulations or any  change in the national or international financial, political or economic conditions are imposed in the country  in which such currency is issued, result in, in the reasonable opinion of the Administrative Agent and/or  L/C Issuer, (a) such currency no longer being readily available, freely transferable and convertible into  Dollars, (b) a Dollar Equivalent is no longer readily calculable with respect to such currency, (c) providing  such currency is impracticable for the L/C Issuer or (d) no longer a currency in which the L/C Issuer is  willing to make L/C Credit Extensions (each of clauses (a), (b), (c), and (d) a “Disqualifying Event”), then  the L/C Issuer shall promptly notify the Administrative Agent and the Borrower, and such country’s  currency shall no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer  exist.  “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil,  surface and subsurface strata, and natural resources such as wetland, flora and fauna.  “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws (including  common law), regulations, standards, ordinances, rules, judgments, interpretations, orders, decrees,  permits, agreements or governmental restrictions relating to pollution or the protection of the Environment  or human health (to the extent related to exposure to hazardous materials), including those relating to the  manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous  Materials, air emissions and discharges to waste or public systems.  “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities) whether based in contract,  tort, implied or express warranty, strict liability, criminal or civil statute or common law, directly or  indirectly relating to (a) any Environmental Law, (b) the generation, use, handling, transportation, storage,  treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) Release or  





 






14  threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual  arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.  “Environmental Permit” means any permit, certification, registration, approval, identification  number, license or other authorization required under any Environmental Law.  “Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or  acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such  Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other  ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition  from such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and  whether or not such shares, warrants, options, rights or other interests are outstanding on any date of  determination.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules  and regulations promulgated thereunder.  “ERISA Affiliate” means any trade or business (whether or not incorporated) under common control  with the Borrower within the meaning of Sections 414(b) or (c) of the Code (and Sections 414(m) and (o)  of the Code for purposes of provisions relating to Section 412 of the Code).  “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of  the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan  year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a  cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete  or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of  a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section  4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan;  (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of,  or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan  is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430,  431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under  Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,  upon the Borrower or any ERISA Affiliate or (i) a failure by the Borrower or any ERISA Affiliate to meet  all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not  waived, or the failure by the Borrower or any ERISA Affiliate to make any required contribution to a  Multiemployer Plan.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.  “Event of Default” has the meaning specified in Section 8.01.  “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to  the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a  Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity  Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the  application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to  constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after  





 






15  giving effect to Section 10.11 and any other “keepwell”, support or other agreement for the benefit of such  Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the  time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect  to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one  Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable  to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first  sentence of this definition.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured  by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed  as a result of such Recipient being organized under the laws of, or having its principal office or, in the case  of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision  thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes  imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in  a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such  interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under  Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that,  pursuant to Sections 3.01(b) or (d), amounts with respect to such Taxes were payable either to such Lender’s  assignor immediately before such Lender became a party hereto or to such Lender immediately before it  changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(f)  and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.  “Existing Credit Agreement” has the meaning specified in the Preliminary Statements hereto.  “Existing Letters of Credit” means those certain letters of credit set forth on Schedule 1.01(d).  “Existing Loans” has the meaning set forth in Section 11.22(b).  “Exiting Lender” has the meaning set forth in Section 11.22(b).  “Facility” means the Term Facility, an Incremental Term Facility or the Revolving Facility, as the  context may require.  “Facility Termination Date” means the date as of which all of the following shall have occurred:  (a) the Aggregate Commitments have terminated, (b) all Obligations have been paid in full (other than  contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired (other than  Letters of Credit as to which other arrangements with respect thereto satisfactory to the Administrative  Agent and the L/C Issuer shall have been made).  “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards  Board.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any  amended or successor version that is substantively comparable and not materially more onerous to comply  with) and any current or future regulations or official interpretations thereof and any agreements entered  into pursuant to Section 1471(b)(1) of the Code, as of the date of this Agreement (or any amended or  successor version described above) and any intergovernmental agreement (and related fiscal or regulatory  legislation, or related official rules or practices) implementing the foregoing.  





 






16  “Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve  Bank of New York based on such day’s federal funds transactions by depository institutions (as determined  in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to  time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the  federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than  zero, such rate shall be deemed to be zero for the purposes of this Agreement.   “Fee Letters” mean, collectively (a) the fee later, dated October 3, 2022, among the Borrower and  BofA Securities, Inc., and (b) the fee later, dated October 24, 2022, among the Borrower and Wells Fargo  Securities, LLC.  “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person,  and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a  jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this  definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute  a single jurisdiction.  “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.  “FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender,  (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C  Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has  been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof,  and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline  Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been  reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.  “FSHCO” means any Subsidiary substantially all of the assets of which constitute the Equity  Interests of CFCs.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.  “Funding Indemnity Letter” means a funding indemnity letter in form and substance satisfactory to  the Administrative Agent.  “GAAP” means generally accepted accounting principles in the United States set forth from time  to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute  of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards  Board (or agencies with similar functions of comparable stature and authority within the accounting  profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable  to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.  “Governmental Authority” means the government of the United States or any other nation, or of  any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,  regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,  regulatory or administrative powers or functions of or pertaining to government (including, without  limitation, any supra-national bodies such as the European Union or the European Central Bank).  





 






17  “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Indebtedness of the kind described in  clauses (a) through (g) of the definition thereof or other obligation payable or performable by another Person  (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such  Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment  of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the  purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or  performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or  any other financial statement condition or liquidity or level of income or cash flow of the primary obligor  so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the  purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of  the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or  in part), or (b) any Lien on any assets of such Person securing any Indebtedness of the kind described in  clauses (a) through (g) of the definition thereof or other obligation of any other Person, whether or not such  Indebtedness or other obligation is assumed or expressly undertaken by such Person (or any right,  contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any  Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related  primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or  determinable, the maximum reasonably anticipated liability in respect thereof as determined by the  guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.  “Guaranteed Obligations” has the meaning set forth in Section 10.01.  “Guarantors” means, collectively, (a) the Domestic Subsidiaries of the Borrower set forth on  Schedule 5.20(b) and those other Domestic Subsidiaries as may from time to time become parties to this  Agreement pursuant to Section 6.13, and (b) with respect to Additional Guaranteed Obligations owing by  any Loan Party or any of its Subsidiaries and any Swap Obligation of a Specified Loan Party (determined  before giving effect to Sections 10.01 and 10.11) under the Guaranty, the Borrower.  “Guaranty” means, collectively, the Guarantee made by the Guarantors under Article X in favor of  the Specified Parties, together with each other guaranty delivered pursuant to Section 6.13.  “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas,  natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic  mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or  compounds of any nature in any form regulated pursuant to any Environmental Law.  “Hedge Bank” means any Person in its capacity as a party to a Swap Contract that, (a) at the time  it enters into a Swap Contract not prohibited under Articles VI or VII, is a Lender or an Affiliate of a Lender,  or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract not prohibited under  Articles VI or VII, in each case, in its capacity as a party to such Swap Contract (even if such Person ceases  to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Specified Hedge  Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be  considered a Hedge Bank only through the stated termination date (without extension or renewal) of such  Specified Hedge Agreement and provided further that for any of the foregoing to be included as a “Specified  Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank  (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a  Specified Party Designation Notice to the Administrative Agent prior to such date of determination.  “Impacted Loans” has the meaning assigned to such term in Section 3.03(a).  





 






18  “Incremental Agreement” has the meaning specified in Section 2.16(f).  “Incremental Commitments” means Incremental Revolving Commitments and/or the Incremental  Term Commitments.  “Incremental Effective Date” has the meaning specified in Section 2.16(f).  “Incremental Revolving Commitment” has the meaning assigned to such term in Section 2.16(a).  “Incremental Revolving Commitment Lender” has the meaning specified in Section 2.16(g).  “Incremental Term Commitment” has the meaning assigned to such term in Section 2.16(a).  “Incremental Term Facility” means, at any time, (a) on or prior to an Incremental Effective Date,  the aggregate amount of any Incremental Term Commitments in respect of Incremental Term Loans at such  time and (b) thereafter, the aggregate principal amount of the Incremental Term Loans of all Incremental  Term Lenders outstanding at such time.  “Incremental Term Lender” means a Lender with an Incremental Term Commitment in respect of  Incremental Term Loans or an outstanding Incremental Term Loan.  “Incremental Term Loan Maturity Date” has the meaning assigned to such term in Section  2.16(c)(ii).  “Incremental Term Loans” means any loans made pursuant to any Incremental Term  Commitments.  “Incremental Term Note” means a promissory note made by the Borrower in favor of an  Incremental Term Lender evidencing Incremental Term Loans made by such Incremental Term Lender,  substantially in the form of Exhibit K.  “Indebtedness” means, as to any Person at a particular time, without duplication, all of the  following, whether or not included as indebtedness or liabilities in accordance with GAAP:  (a) all obligations of such Person for borrowed money and all obligations of such  Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;  (b) all direct or contingent obligations of such Person arising under letters of credit  (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and  similar instruments;  (c) net obligations of such Person under any Swap Contract;  (d) all obligations (including, without limitation, earnout obligations) of such Person  to pay the deferred purchase price of property or services (other than trade accounts payable in the  ordinary course of business and not past due for more than sixty (60) days after the date on which  such trade account was created);  (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property  owned or being purchased by such Person (including indebtedness arising under conditional sales  or other title retention agreements), whether or not such indebtedness shall have been assumed by  such Person or is limited in recourse;  





 






19  (f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease  Obligations of such Person and all Synthetic Debt of such Person;  (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise  make any payment in respect of any Equity Interest in such Person or any other Person or any  warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred  interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid  dividends; and  (h) all Guarantees of such Person in respect of any of the foregoing.  For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any  partnership or joint venture (other than a joint venture that is itself a corporation or limited liability  company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly  made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date  shall be deemed to be the Swap Termination Value thereof as of such date.  “Indebtedness For Borrowed Money” means, as of any date with respect to the Borrower and its  Subsidiaries on a Consolidated basis and without duplication, (i) all Indebtedness represented by notes,  bonds, debentures or other evidences of indebtedness, for the repayment of money borrowed, (ii) all  Indebtedness representing deferred payment of the purchase price of property, (iii) all Indebtedness under  any Capitalized Lease, (iv) all Indebtedness under any Guaranty, and (v) all Indebtedness secured by a Lien  on any property or asset.  “Indemnified Taxes” means all (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 specified in Section 11.04(b).  “Information” has the meaning specified in Section 11.07(a).  “Intercompany Debt” has the meaning specified in Section 7.02(d).  “Interest Expense” means, for the Borrower and its Subsidiaries on a Consolidated basis for any  period, total interest expense in respect of Consolidated Total Liabilities payable during such period,  including, without limitation, all commissions, discounts, and other fees and charges with respect to letters  of credit, all as determined in accordance with GAAP.  “Interest Payment Date” means, (a) as to any Term SOFR Loan, the last day of each Interest Period  applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided,  however, that if any Interest Period for a Term SOFR Loan exceeds three (3) months, the respective dates  that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment  Dates; and (b) as to any Base Rate Loan or Swingline Loan, the last Business Day of each March, June,  September and December and the Maturity Date of the Facility under which such Loan was made (with  Swingline Loans being deemed made under the Revolving Facility for purposes of this definition).  “Interest Period” means as to each Term SOFR Loan, the period commencing on the date such  Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date  one (1), three (3) or six (6) months thereafter, as selected by the Borrower in its Loan Notice; provided that:  





 






20  (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be  extended to the next succeeding Business Day unless, in the case of a Term SOFR Loan, such Business  Day falls in another calendar month, in which case such Interest Period shall end on the next preceding  Business Day;  (b) any Interest Period pertaining to a Term SOFR Loan that begins on the last Business Day  of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month  at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of  such Interest Period; and  (c)  no Interest Period shall extend beyond the Maturity Date of the Facility under which such  Loan was made.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person,  (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other  acquisition of any other debt or interest in, another Person (including any partnership or joint venture  interest in such other Person and any arrangement pursuant to which the investor guaranties Indebtedness  of such other Person), or (c) the purchase or other acquisition (in one transaction or a series of transactions)  of assets of another Person which constitute all or substantially all of the assets of such Person or of a  division, line of business or other business unit of such Person. For purposes of covenant compliance, the  amount of any Investment shall be the amount actually invested, without adjustment for subsequent  increases or decreases in the value of such Investment.  “Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or  other taking for public use of, any property of any Loan Party or any Subsidiary.  “IRS” means the United States Internal Revenue Service.  “ISP” means the International Standby Practices, International Chamber of Commerce Publication  No. 590 (or such later version thereof as may be in effect at the applicable time).  “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any  Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.  “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit D executed  and delivered in accordance with the provisions of Section 6.13.  “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules,  guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including  the interpretation or administration thereof by any 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.  “L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its  participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.  “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit  which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing.   





 






21  “L/C Commitment” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to  issue Letters of Credit hereunder. The initial amount of the L/C Issuer’s L/C Commitment is set forth on  Schedule 2.03.  “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or  extension of the expiry date thereof, or the increase of the amount thereof.  “L/C Disbursement” means any payment made by the L/C Issuer pursuant to a Letter of Credit.  “L/C Issuer” means Bank of America, through itself or through one of its designated Affiliates or  branch offices, in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of  Credit hereunder.  “L/C Obligations” means, as at any date of determination, the aggregate amount available to be  drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts (including  all L/C Borrowings). For purposes of computing the amount available to be drawn under any Letter of  Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all  purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but  any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter  of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.  “Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each  other Person that becomes a “Lender” in accordance with this Agreement and, their successors and assigns  and, unless the context requires otherwise, includes the Swingline Lender.   “Lender Parties” and “Lender Recipient Parties” mean, collectively, the Lenders, the Swingline  Lender and the L/C Issuer.  “Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office  or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other  office or offices as such Person may from time to time notify the Borrower and the Administrative Agent;  which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or  such Affiliate.  “Letter of Credit” means any letter of credit issued hereunder and shall include the Existing Letters  of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit. Letters of  Credit may be issued in Dollars or in an Alternative Currency.  “Letter of Credit Application” means an application and agreement for the issuance or amendment  of a Letter of Credit in the form from time to time in use by the L/C Issuer.  “Letter of Credit Fee” has the meaning specified in Section 2.03(l).  “Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser of  (a) $10,000,000 and (b) the Revolving Facility. The Letter of Credit Sublimit is part of, and not in addition  to, the Revolving Facility.  “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,  encumbrance, lien (statutory or otherwise), charge, or preference, priority or other security interest or  preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any  conditional sale or other title retention agreement (including consignments), any easement, right of way or  





 






22  other encumbrance on title to real property and any financing lease having substantially the same economic  effect as any of the foregoing).  “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a  Term Loan, an Incremental Term Loan, a Revolving Loan or a Swingline Loan.  “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the  Fee Letters, (e) each Issuer Document, (f) each Joinder Agreement, (g) any agreement creating or  perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, (h) each Incremental  Agreement and (i) all other certificates, agreements, documents and instruments executed and delivered, in  each case, by or on behalf of any Loan Party pursuant to the foregoing (but specifically excluding any  Specified Hedge Agreement or any Specified Cash Management Agreement) and any amendments,  modifications or supplements thereto or to any other Loan Document or waivers hereof or to any other  Loan Document; provided, however, that for purposes of Section 11.01, “Loan Documents” shall mean this  Agreement and the Guaranty.  “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the  other, or (c) a continuation of Term SOFR Loans, pursuant to Section 2.02(a), which shall be substantially  in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including  any form on an electronic platform or electronic transmission system as shall be approved by the  Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.  “Loan Parties” means, collectively, the Borrower and each Guarantor.  “Maintenance Capital Expenditures” means Capital Expenditures incurred by the Borrower or its  Subsidiaries in connection with the replacement or maintenance of equipment or other fixed assets of the  Borrower and its Subsidiaries.    “Master Agreement” has the meaning set forth in the definition of “Swap Contract.”  “Material Acquisition” means a Permitted Acquisition for which the aggregate Cost of Acquisition  paid by the Loan Parties is in excess of $90,000,000.  “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon,  the operations, business, assets, properties, liabilities (actual or contingent), condition (financial or  otherwise) of the Loan Parties and their respective Subsidiaries taken as a whole; or (b) a material adverse  effect on (i) the rights, remedies and benefits available to, or conferred upon, the Administrative Agent or  any Lender under any Loan Documents; (ii) the ability of any Loan Party to perform its Obligations under  any Loan Document to which it is a party, or (iii) the legality, validity, binding effect or enforceability  against any Loan Party of any Loan Document to which it is a party.  “Material Contract” means, with respect to any Person, each contract, agreement, permit or license,  written or oral, of such Person as to which the breach, nonperformance, cancellation or failure to renew by  any party thereto, individually or in the aggregate, could reasonably be expected to have a Material Adverse  Effect.  “Maturity Date” means (a) with respect to the Revolving Facility, October 28, 2027, (b) with  respect to the Term Facility, October 28, 2027 and (c) with respect to any Incremental Term Facility, the  maturity date set forth in the Incremental Agreement for such Incremental Term Facility; provided,  however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding  Business Day.  





 






23  “Maximum Rate” has the meaning specified in Section 11.09.   “Measurement Period” means a period of four (4) consecutive fiscal quarters, which, at any date  of determination unless otherwise specified herein, shall be the most recently completed four (4) fiscal  quarters of the Borrower.  “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the L/C Issuer  with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount  determined by the Administrative Agent and the L/C Issuer in their sole discretion.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3)  of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or  during the preceding five (5) plan years, has made or been obligated to make contributions.  “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including  the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan  is described in Section 4064 of ERISA.  “Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by any Loan  Party in respect of any Disposition or Involuntary Disposition, net of (a) direct costs incurred in connection  therewith (including, without limitation, legal, accounting and investment banking fees and sales  commissions), (b) taxes paid or payable as a result thereof and (c) the amount necessary to retire any  Indebtedness secured by a Permitted Lien on the related property; it being understood that “Net Cash  Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other  disposition of any non-cash consideration received by any Loan Party in any Disposition or Involuntary  Disposition.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (a) requires the approval of all Lenders or all affected Lenders, or all Lenders or all affected  Lenders in a Facility, in accordance with the terms of Section 11.01 and (b) has been approved by the  Required Lenders.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.  “Non-Extension Notice Date” has the meaning specified in Section 2.03(b).  “Note” means a Term Note, an Incremental Term Note or a Revolving Note, as the context may  require.  “Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be  substantially in the form of Exhibit N or such other form as may be approved by the Administrative Agent  (including any form on an electronic platform or electronic transmission system as shall be approved by the  Administrative Agent), appropriately completed and signed by a Responsible Officer.  “NPL” means the National Priorities List under CERCLA.  





 






24  “Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of,  any Loan Party arising under any Loan Document or otherwise with respect to any Loan, or Letter of Credit  and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing,  including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including  those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter  arising and including interest, expenses and fees that accrue after the commencement by or against any  Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such  Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed  claims in such proceeding; provided that, without limiting the foregoing, the Obligations of a Guarantor  shall exclude any Excluded Swap Obligations with respect to such Guarantor.  “OFAC” means the Office of Foreign Assets Control of the United States Department of the  Treasury.  “Operating Cash Flow” means, for the Borrower and its Subsidiaries on a Consolidated basis, for  any period, the sum of Consolidated Net Income, less income or plus loss from discontinued operations and  extraordinary items, less gains or plus losses from the sale of assets, plus income tax expense, plus interest  expense, plus depreciation, depletion, amortization and other non-cash charges, plus Target Operating Cash  Flow, and less Disposed Asset Operating Cash Flow, each as determined in accordance with GAAP.  “Organization Documents” means, (a) with respect to any corporation, the charter or certificate or  articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect  to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating agreement or limited liability company agreement (or equivalent  or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership,  joint venture, trust or other form of business entity, the partnership, joint venture or other applicable  agreement of formation or organization (or equivalent or comparable documents with respect to any non- U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect  thereto filed in connection with its formation or organization with the applicable Governmental Authority  in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to  any non-U.S. jurisdiction).  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in any  other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan  or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing  or similar Taxes that arise from any payment made under, from the execution, delivery, performance,  enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with  respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with  respect to an assignment (other than an assignment made pursuant to Section 3.06).  “Outstanding Amount” means (a) with respect to Term Loans, Incremental Term Loans, Revolving  Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving  effect to any Borrowings and prepayments or repayments of Term Loans, Incremental Term Loans,  Revolving Loans and Swingline Loans, as the case may be, occurring on such date; and (b) with respect to  any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of  such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date  





 






25  and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result  of any reimbursements by the Borrower of Unreimbursed Amounts.  “Outstanding Term Loan Obligations” has the meaning specified in Section 2.01(a).  “Participant” has the meaning specified in Section 11.06(d).  “Participant Register” has the meaning specified in Section 11.06(d).  “Patriot Act” has the meaning specified in Section 11.19.  “PBGC” means the Pension Benefit Guaranty Corporation.  “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding  standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code  and Sections 302, 303, 304 and 305 of ERISA.  “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or  a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate or  with respect to which the Borrower or any ERISA Affiliate has any liability and is either covered by Title  IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.  “Permitted Acquisition” means an Acquisition by a Loan Party (the Person or division, line of  business or other business unit of the Person to be acquired in such Acquisition shall be referred to herein  as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to  be engaged in by the Borrower and its Subsidiaries pursuant to the terms of this Agreement, in each case  so long as:  (a) no Default or Event of Default shall then exist or would exist after giving effect  thereto;  (b) after giving effect to the Acquisition on a pro forma basis, the Loan Parties are in  Pro Forma Compliance;  (c) the Borrower shall comply, and cause the Target to comply, with the terms of  Section 6.13 to the extent applicable; and  (d) the Administrative Agent and the Lenders shall have received not less than five (5)  Business Days prior to the consummation of any Permitted Acquisition or series of related  Permitted Acquisitions with an aggregate Cost of Acquisition in excess of $45,000,000, a Permitted  Acquisition Certificate, executed by a Responsible Officer of the Borrower (i) certifying that such  Permitted Acquisition complies with the requirements of this Agreement, (ii) demonstrating the  Loan Parties’ Pro Forma Compliance, and (iii) including a calculation of the Target Operating Cash  Flow (as if the business, assets or Person acquired had been acquired on the first (1st) day of the  Measurement Period for which such pro forma financial statements are delivered) during such  Measurement Period.  “Permitted Acquisition Certificate” means a certificate substantially the form of Exhibit F or any  other form approved by the Administrative Agent.  “Permitted Liens” has the meaning set forth in Section 7.01.  





 






26  “Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of business; (b)  Dispositions of property to any Loan Party; (c) Dispositions of accounts receivable in connection with the  collection or compromise thereof; (d) licenses, sublicenses, leases or subleases granted to others not  interfering in any material respect with the business of the Loan Parties; and (e) the sale or disposition of  Cash Equivalents for fair market value.  “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.  “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including  a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to  which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.  “Platform” has the meaning specified in Section 6.02.  “Pro Forma Compliance” means, with respect to any transaction, that such transaction does not  cause, create or result in a Default after giving pro forma effect, based upon the results of operations for the  most recently completed Measurement Period to (a) such transaction and (b) all other transactions which  are contemplated or required to be given pro forma effect hereunder that have occurred on or after the first  day of the relevant Measurement Period.  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as  any such exemption may be amended from time to time.  “Public Lender” has the meaning specified in Section 6.02.  “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).  “QFC Credit Support” has the meaning specified in Section 11.21.  “Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding  $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity  Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time  under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  “Qualifying Control Agreement” means an agreement, among a Loan Party, a depository institution  or securities intermediary and the Administrative Agent, which agreement is in form and substance  acceptable to the Administrative Agent and which provides the Administrative Agent with “control” (as  such term is used in Article 9 of the UCC) over the deposit account(s) or securities account(s) described  therein.  “Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of  any payment to be made by or on account of any obligation of any Loan Party hereunder.  “Register” has the meaning specified in Section 11.06(c).  “Regulation U” means Regulation U of the FRB, as in effect from time to time and all official  rulings and interpretations thereunder or thereof.  





 






27  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service  providers and representatives of such Person and of such Person’s Affiliates.  “Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping,  pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any  building, structure or facility.  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty (30) day notice period has been waived.  “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation  of Term Loans, Incremental Term Loans or Revolving Loans, a Loan Notice, (b) with respect to an L/C  Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan, a Swingline  Loan Notice.  “Required Class Lenders” means, at any time with respect to any Class of Loans or Commitments,  Lenders having Total Credit Exposures with respect to such Class representing more than 50% of the Total  Credit Exposures of all Lenders of such Class. The Total Credit Exposure of any Defaulting Lender with  respect to such Class shall be disregarded in determining Required Class Lenders at any time.  “Required Incremental Term Lenders” means, at any time, Incremental Term Lenders having Total  Incremental Term Credit Exposures representing more than 50% of the Total Incremental Term Credit  Exposures of all Incremental Term Lenders. The Total Incremental Term Credit Exposure of any Defaulting  Lender shall be disregarded in determining Required Incremental Term Lenders at any time.  “Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more  than 50% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender  shall be disregarded in determining Required Lenders at any time; provided that, the amount of any  participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to  fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the  Lender that is the Swingline Lender or the L/C Issuer, as the case may be, in making such determination.  “Required Revolving Lenders” means, at any time, Revolving Lenders having Total Revolving  Exposures representing more than 50% of the Total Revolving Exposures of all Revolving Lenders. The  Total Revolving Exposure of any Defaulting Lender shall be disregarded in determining Required  Revolving Lenders at any time; provided that, the amount of any participation in any Swingline Loan and  Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to  and funded by another Lender shall be deemed to be held by the Revolving Lender that is the Swingline  Lender or the L/C Issuer, as the case may be, in making such determination.  “Required Term Lenders” means, at any time, Term Lenders having Total Term Credit Exposures  representing more than 50% of the Total Term Credit Exposures of all Term Lenders. The Total Term  Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Term Lenders at  any time.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Rescindable Amount” has the meaning set forth in Section 2.12(b)(ii).  





 






28  “Resignation Effective Date” has the meaning set forth in Section 9.06(a).  “Responsible Officer” means the chief executive officer, president, executive vice-president, vice- president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, solely for  purposes of the delivery of incumbency certificates pursuant to Section 4.01(b), the secretary or any  assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other  officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice  to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or  pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document  delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed  to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan  Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan  Party. To the extent requested by the Administrative Agent, each Responsible Officer will provide an  incumbency certificate and to the extent requested by the Administrative Agent, appropriate authorization  documentation, in form and substance satisfactory to the Administrative Agent.  “Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of  any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Subsidiaries, now  or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other  acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the  Borrower or any of its Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to  obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of  Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, and (d) any  payment with respect to any earnout obligation.  “Revaluation Date” means with respect to any Letter of Credit, each of the following: (a) each date  of issuance, amendment and/or extension of a Letter of Credit denominated in an Alternative Currency,  (b) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an Alternative  Currency, (c) in the case of all Existing Letters of Credit denominated in Alternative Currencies, the Closing  Date, and (d) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the  Required Lenders shall require.  “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the  same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the  Revolving Lenders pursuant to Section 2.01(b).  “Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving  Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, and  (c) purchase participations in Swingline Loans, in an aggregate principal amount at any one time  outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under the  caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to  which such Lender becomes a party hereto or in any Incremental Agreement, as applicable, as such amount  may be adjusted from time to time in accordance with this Agreement; it being understood that a Lender’s  Revolving Commitment shall include any Incremental Revolving Commitments of such Lender. The  Revolving Commitment of all of the Revolving Lenders on the Closing Date shall be $400,000,000.  “Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount at such  time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swingline  Loans at such time.  





 






29  “Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’  Revolving Commitments at such time.  “Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any  Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have  terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or  Swingline Loans at such time.  “Revolving Loan” has the meaning specified in Section 2.01(b).  “Revolving Note” means a promissory note made by the Borrower in favor of a Revolving Lender  evidencing Revolving Loans or Swingline Loans, as the case may be, made by such Revolving Lender,  substantially in the form of Exhibit G.  “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and  any successor thereto.  “Sale and Leaseback Transaction” means, with respect to any Loan Party or any Subsidiary, any  arrangement, directly or indirectly, with any Person whereby such Loan Party 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.  “Sanction(s)” means any sanction administered or enforced by the United States Government  (including, without limitation, OFAC), the United Nations Security Council, the European Union, His  Majesty’s Treasury (“HMT”) or other relevant sanctions authority.  “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.  “Securitization Transaction” means, with respect to any Person, any financing transaction or series  of financing transactions (including factoring arrangements) pursuant to which such Person or any  Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts,  payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special  purpose subsidiary or affiliate of such Person.  “Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’ equity  of the Borrower and its Subsidiaries as of such date, determined in accordance with GAAP.  “SOFR” ” means the Secured Overnight Financing Rate as administered by the Federal Reserve  Bank of New York (or a successor administrator).  “SOFR Adjustment” with respect to  Daily Simple SOFR means 0.10% (10 basis points); and with  respect to Term SOFR means 0.10% (10 basis points) for an interest period of one-month’s duration, an  interest period of three-month’s duration and an interest period of six-months’ duration.  “Solvency Certificate” means a solvency certificate in form and substance reasonably satisfactory  to the Administrative Agent.  “Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on  such date (a) the fair value of the property of such Person is greater than the total amount of liabilities,  





 






30  including contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such  Person is not less than the amount that will be required to pay the probable liability of such Person on its  debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it  will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature,  (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a  transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such  Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature  in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as  the amount that, in the light of all the facts and circumstances existing at such time, represents the amount  that can reasonably be expected to become an actual or matured liability.  “Specified Cash Management Agreement” means any Cash Management Agreement between the  any Loan Party and any Cash Management Bank.  “Specified Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity  Swap Contract not prohibited under Article VI or VII between any Loan Party and any Hedge Bank.  “Specified Loan Party” means any Loan Party that is not then an “eligible contract participant”  under the Commodity Exchange Act (determined prior to giving effect to Section 10.11).  “Specified Obligations” means all Obligations and all Additional Guaranteed Obligations.  “Specified Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the  Hedge Banks, the Cash Management Banks, the Indemnitees and each co-agent or sub-agent appointed by  the Administrative Agent from time to time pursuant to Section 9.05.  “Specified Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender  substantially in the form of Exhibit H.  “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company  or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned,  or the management of which is otherwise controlled, directly, or indirectly through one or more  intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary”  or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.  “Supported QFC” has the meaning specified in Section 11.21.  “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions, forward rate transactions, commodity swaps, commodity options, forward commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward bond or forward bond price or forward bond index transactions, interest rate options, forward  foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement (any such master agreement, together with any related schedules, a “Master Agreement”),  including any such obligations or liabilities under any Master Agreement.  





 






31  “Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of  the Commodity Exchange Act.  “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into  account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any  date on or after the date such Swap Contracts have been closed out and termination value(s) determined in  accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause  (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based  upon one or more mid-market or other readily available quotations provided by any recognized dealer in  such Swap Contracts (which may include a Lender or any Affiliate of a Lender).  “Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.04.  “Swingline Commitment” means, as to any Lender (a) the amount set forth opposite such Lender’s  name on Schedule 2.01 hereof or (b) if such Lender has entered into an Assignment and Assumption or has  otherwise assumed a Swingline Commitment after the Closing Date, the amount set forth for such Lender  as its Swingline Commitment in the Register maintained by the Administrative Agent pursuant to Section  11.06(c).  “Swingline Lender” means Bank of America in its capacity as provider of Swingline Loans, or any  successor swingline lender hereunder.  “Swingline Loan” has the meaning specified in Section 2.04(a).  “Swingline Loan Notice” means a notice of a Swingline Borrowing pursuant to Section 2.04(b),  which shall be substantially in the form of Exhibit I or such other form as approved by the Administrative  Agent (including any form on an electronic platform or electronic transmission system as shall be approved  by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the  Borrower.  “Swingline Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b) the Revolving  Facility. The Swingline Sublimit is part of, and not in addition to, the Revolving Facility.  “Synthetic Debt” means, with respect to any Person as of any date of determination thereof, all  obligations of such Person in respect of transactions entered into by such Person that are intended to  function primarily as a borrowing of funds (including any minority interest transactions that function  primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability  on the Consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.  “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called  synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property  (including Sale and Leaseback Transactions), in each case, creating obligations that do not appear on the  balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person,  would be characterized as the indebtedness of such Person (without regard to accounting treatment).  “Target” has the meaning set forth in the definition of “Permitted Acquisition.”  “Target Operating Cash Flow” means, with respect to each Permitted Acquisition consummated  during any Measurement Period, the actual Operating Cash Flow attributable to the Target of such  





 






32  Permitted Acquisition during such Measurement Period on a pro forma basis as if such Permitted  Acquisition occurred on the first day of such Measurement Period.  “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 Borrowing” means a borrowing consisting of simultaneous Term Loans or Incremental  Term Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made  by each of the Term Lenders or Incremental Term Lenders, as applicable, pursuant to Article II.  “Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to the  Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to  exceed the amount set forth opposite such Term Lender’s name on Schedule 1.01(b) under the caption  “Term Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such  Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in  accordance with this Agreement. The Term Commitment of all of the Term Lenders on the Closing Date  shall be $255,000,000.  “Term Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate amount of  the Term Commitments at such time and (b) thereafter, the aggregate principal amount of the Term Loans  of all Term Lenders outstanding at such time.  “Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a Term  Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term Loans at  such time.  “Term Loan” has the meaning specified in Section 2.01(a).  “Term Note” means a promissory note made by the Borrower in favor of a Term Lender evidencing  Term Loans made by such Term Lender, substantially in the form of Exhibit J.  “Term SOFR” means:   (a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the  Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of  such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published  prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the  first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR  Adjustment for such Interest Period; and  (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum  equal to the Term SOFR Screen Rate with a term of one month commencing that day;  provided that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or (b)  of this definition would otherwise be less than zero, the Term SOFR shall be deemed zero for purposes of  this Agreement.  “Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition  of Term SOFR.  





 






33  “Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or  any successor administrator satisfactory to the Administrative Agent) and published on the applicable  Reuters screen page (or such other commercially available source providing such quotations as may be  designated by the Administrative Agent from time to time).  “Threshold Amount” means $7,500,000.  “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving  Exposure and Outstanding Amount of all Term Loans and Incremental Term Loans of such Lender at such  time.  “Total Incremental Term Credit Exposure” means, as to any Incremental Term Lender at any time,  the Outstanding Amount of all Incremental Term Loans of such Incremental Term Lender at such time.  “Total Revolving Exposure” means, as to any Revolving Lender at any time, the unused  Commitments and Revolving Exposure of such Revolving Lender at such time.  “Total Revolving Outstandings” means, as of any date of determination, the aggregate Outstanding  Amount of all Revolving Loans, Swingline Loans and L/C Obligations as of such date.  “Total Term Credit Exposure” means, as to any Term Lender at any time, the Outstanding Amount  of all Term Loans of such Term Lender at such time.  “Transactions” means, collectively the entering into by the Loan Parties and their applicable  Subsidiaries of the Loan Documents to which they are intended to be a party and the payment of fees and  expenses incurred in connection with the consummation of the foregoing.  “Type” means, with respect to a Loan, its character as a Base Rate Loan or a Term SOFR Loan.  “UCC” means the Uniform Commercial Code as in effect in the State of New York.  “UCP” means the Uniform Customs and Practice for Documentary Credits, International Chamber  of Commerce Publication No. 600 (or such later version thereof as may be in effect at the applicable time).  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA  Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative authority  having responsibility for the resolution of any UK Financial Institution.  “United States” and “U.S.” mean the United States of America.  “Unreimbursed Amount” has the meaning specified in Section 2.03(f).  “U.S. Government Securities Business Day” means any Business Day, except any Business Day on  which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or  the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under  the federal laws of the United States or the laws of the State of New York, as applicable.  





 






34  “U.S. Loan Party” means any Loan Party that is organized under the laws of the United States, any  state thereof for the District of Columbia.  “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30)  of the Code.  “U.S. Special Resolution Regimes” has the meaning specified in Section 11.21.  “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).  “Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the  holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors  (or persons performing similar functions) of such Person, even though the right to so vote has been  suspended by the happening of such contingency.  “Withholding Agent” means the Borrower 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.  1.02 Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein  or in such other Loan Document:  (a) The definitions of terms herein shall apply equally to the singular and plural forms  of the terms defined. Whenever the context may require, any pronoun shall include the  corresponding masculine, feminine and neuter forms. The words “include,” “includes” and  “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”  shall be construed to have the same meaning and effect as the word “shall.” Unless the context  requires otherwise, (i) any definition of or reference to any agreement, instrument or other  document (including the Loan Documents and any Organization Document) shall be construed as  referring to such agreement, instrument or other document as from time to time amended, amended  and restated, modified, extended, restated, replaced or supplemented from time to time (subject to  any restrictions on such amendments, supplements or modifications set forth herein or in any other  Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s  successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of  similar import when used in any Loan Document, shall be construed to refer to such Loan  Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan  Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed  to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the  Loan Document in which such references appear, (v) any reference to any law shall include all  statutory and regulatory rules, regulations, orders and provisions consolidating, amending,  





 






35  replacing or interpreting such law and any reference to any law, rule or regulation shall, unless  otherwise specified, refer to such law, rule or regulation as amended, modified, extended, restated,  replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall be  construed to have the same meaning and effect and to refer to any and all tangible and intangible  assets and properties, including cash, securities, accounts and contract rights.  (b) In the computation of periods of time from a specified date to a later specified date,  the word “from” means “from and including;” the words “to” and “until” each mean “to but  excluding;” and the word “through” means “to and including.”  (c) Section headings herein and in the other Loan Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or any other  Loan Document.  (d) Any reference herein to a merger, transfer, consolidation, amalgamation,  assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of  or by a limited liability company, or an allocation of assets to a series of a limited liability company  (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation,  amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with  a separate Person. Any division of a limited liability company shall constitute a separate Person  hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or  any other like term shall also constitute such a Person or entity).  1.03 Accounting Terms.  (a) Generally. All accounting terms not specifically or completely defined herein shall  be construed in conformity with, and all financial data (including financial ratios and other financial  calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity  with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner  consistent with that used in preparing the Audited Financial Statements, except as otherwise  specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining  compliance with any covenant (including the computation of any financial covenant) contained  herein, (i) Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100%  of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC  470–20 on financial liabilities shall be disregarded, and (ii) all terms of an accounting or financial  nature used herein shall be construed, and all computations of amounts and ratios referred to herein  shall be made, without giving effect to any election under FASB ASC Topic 825 “Financial  Instruments” (or any other financial accounting standard having a similar result or effect) to value  any Indebtedness of the Borrower or any Subsidiary at “fair value”, as defined therein. For purposes  of determining the amount of any outstanding Indebtedness, no effect shall be given to any election  by the Borrower to measure an item of Indebtedness using fair value (as permitted by Financial  Accounting Standards Board Accounting Standards Codification 825–10–25 (formerly known as  FASB 159) or any similar accounting standard).  (b) Changes in GAAP. If at any time any change in GAAP would affect the  computation of any financial ratio or requirement set forth in any Loan Document, and either the  Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the  Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original  intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);  provided that, until so amended, (i) such ratio or requirement shall continue to be computed in  accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the  





 






36  Administrative Agent and the Lenders financial statements and other documents required under  this Agreement or as reasonably requested hereunder setting forth a reconciliation between  calculations of such ratio or requirement made before and after giving effect to such change in  GAAP.   (c) Pro Forma Treatment. Without duplication of any other provisions regarding pro  forma treatment herein, each Disposition of all or substantially all of a line of business, and each  Permitted Acquisition, by the Borrower and its Subsidiaries that is consummated during any  Measurement Period shall, for purposes of determining compliance with the financial covenants  set forth in Section 7.11 and for purposes of determining the Applicable Rate, be given pro forma  effect as of the first day of such Measurement Period.  1.04 Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be  calculated by dividing the appropriate component by the other component, carrying the result to one place  more than the number of places by which such ratio is expressed herein and rounding the result up or down  to the nearest number (with a rounding-up if there is no nearest number).  1.05 Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time  (daylight or standard, as applicable).  1.06 Letter of Credit Amounts.   Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to  be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided,  however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document  related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of  such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such  Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in  effect at such time.  1.07 UCC Terms.  Terms defined in the UCC in effect on the Closing Date and not otherwise defined herein shall,  unless the context otherwise indicates, have the meanings provided by those definitions. Subject to the  foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.  1.08 Exchange Rates; Currency Equivalents.  (a) The Administrative Agent or the L/C Issuer, as applicable, shall determine the  Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in  Alternative Currencies. Such Dollar Equivalent shall become effective as of such Revaluation Date  and shall be the Dollar Equivalent of such amounts until the next Revaluation Date to occur. Except  for purposes of financial statements delivered by Loan Parties hereunder or calculating financial  covenants hereunder or except as otherwise provided herein, the applicable amount of any currency  (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount  as so determined by the Administrative Agent or the L/C Issuer, as applicable.  





 






37  (b) Wherever in this Agreement in connection with the issuance, amendment or  extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is  expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such  amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to  the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as  determined by the Administrative Agent or the L/C Issuer, as the case may be.  (c) The Administrative Agent does not warrant, nor accept responsibility, nor shall the  Administrative Agent have any liability with respect to the administration, submission or any other  matter related to any reference rate referred to herein, the selection of rates, any related spread or  adjustment or with respect to any rate that is an alternative or replacement for or successor to any  of such rates (including, without limitation, any Successor Rate) (or any component of any of the  foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative  Agent and its affiliates or other related entities may engage in transactions or other activities that  affect any reference rate referred to herein, or any alternative, successor or replacement rate  (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or  any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrower.  The Administrative Agent may select information sources or services in its reasonable discretion  to ascertain any reference rate referred to herein or any alternative, successor or replacement rate  (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in  each case pursuant to the terms of this Agreements, and shall have no liability to the Borrower, any  Lender or any other person or entity for damages of any kind, including direct or indirect, special,  punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract  or otherwise and whether at law or in equity), for any error or other action or omission related to  or affecting the selection, determination, or calculation of any rate (or component thereof) provided  by any such information source or service.  1.09 Additional Alternative Currencies.   (a) The Borrower may from time to time request that Letters of Credit be issued in a  currency other than those specifically listed in the definition of “Alternative Currency”; provided  that such requested currency is an Eligible Currency. Such request shall be subject to the approval  of the Administrative Agent and the L/C Issuer.  (b) Any such request shall be made to the Administrative Agent not later than 11:00  a.m., twenty (20) Business Days prior to the date of the desired L/C Credit Extension (or such other  time or date as may be agreed by the Administrative Agent and the L/C Issuer, in their sole  discretion). The Administrative Agent shall promptly notify the L/C Issuer thereof. The L/C Issuer  shall notify the Administrative Agent, not later than 11:00 a.m., ten (10) Business Days after receipt  of such request whether it consents, in its sole discretion, to the issuance of Letters of Credit, as the  case may be, in such requested currency.  (c) Any failure by the L/C Issuer to respond to such request within the time period  specified in the preceding sentence shall be deemed to be a refusal by the L/C Issuer to permit  Letters of Credit to be issued in such requested currency. If the Administrative Agent and the L/C  Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative  Agent shall so notify the Borrower. If the Administrative Agent and L/C Issuer do not consent to  any request for an additional currency under this Section 1.09, the Administrative Agent shall  promptly so notify the Borrower.  





 






38  ARTICLE II    COMMITMENTS AND CREDIT EXTENSIONS  2.01 Loans.  (a) Term Borrowing. As of the Closing Date, the outstanding principal amount of the  “Term Loan” (as defined in the Existing Credit Agreement) made to the Borrower is $255,000,000  (the “Outstanding Term Loan Obligations”).  Subject to the terms and conditions set forth herein,  each Term Lender severally agrees to make a single loan to the Borrower, in Dollars, in a single  draw on the Closing Date in an amount equal to such Term Lender’s Applicable Percentage of the  Term Facility less such Term Lender’s Applicable Percentage of the Outstanding Term Loan  Obligations (the “Closing Date Term Loans”, and together with the Outstanding Term Loan  Obligations, the “Term Loan”). The Term Borrowing shall consist of Term Loans made  simultaneously by the Term Lenders in accordance with their respective Applicable Percentage of  the Term Facility. Subject to the terms and conditions set forth herein, each of the parties hereto  hereby agrees (x) that the Outstanding Term Loan Obligations shall be, from and following the  Closing Date, continued and reconstituted as a Term Loan made to the Borrower under this  Agreement and (y) that concurrently therewith, by their execution of this Agreement, the Lenders  have assigned the preexisting loans among themselves, such that, after giving effect to the  transactions contemplated by this Agreement, the Outstanding Term Loan Obligations shall be  allocated among the Term Lenders in accordance with their respective Applicable Percentage of  the Term Facility.  Term Borrowings repaid or prepaid may not be reborrowed.  Term Loans may  be Base Rate Loans or Term SOFR Loans, as further provided herein; provided, however, any Term  Borrowing made on the Closing Date shall be made as Base Rate Loans unless the Borrower  delivers a Funding Indemnity Letter not less than three (3) Business Days prior to the Closing Date.  (b) Revolving Borrowings. Subject to the terms and conditions set forth herein, each  Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the  Borrower, in Dollars, from time to time, on any Business Day during the Availability Period, in an  aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving  Commitment; provided, however, that after giving effect to any Revolving Borrowing, (i) the Total  Revolving Outstandings shall not exceed the Revolving Facility, and (ii) the Revolving Exposure  of any Lender shall not exceed such Revolving Lender’s Revolving Commitment. Within the limits  of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions  hereof, the Borrower may borrow Revolving Loans, prepay under Section 2.05, and reborrow under  this Section 2.01(b). Revolving Loans may be Base Rate Loans or Term SOFR Loans, as further  provided herein; provided, however, any Revolving Borrowings made on the Closing Date or any  of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless  the Borrower delivers a Funding Indemnity Letter not less than three (3) Business Days prior to the  date of such Revolving Borrowing.   2.02 Borrowings, Conversions and Continuations of Loans.  (a) Notice of Borrowing. Each Borrowing, each conversion of Loans from one Type  to the other, and each continuation of Term SOFR Loans shall be made upon the Borrower’s  irrevocable notice to the Administrative Agent, which may be given by: (i) telephone or (ii) a Loan  Notice; provided that any telephonic notice must be confirmed immediately by delivery to the  Administrative Agent of a Loan Notice. Each such Loan Notice must be received by the  Administrative Agent not later than 11:00 a.m. (A) two (2) Business Days prior to the requested  date of any Borrowing of, conversion to or continuation of Term SOFR Loans or of any conversion  





 






39  of Term SOFR Loans to Base Rate Loans, and (B) on the requested date of any Borrowing of Base  Rate Loans. Each Borrowing of, conversion to or continuation of Term SOFR Loans shall be in a  principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as  provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall  be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan  Notice and each telephonic notice shall specify (I) the applicable Facility and whether the Borrower  is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of  Loans, as the case may be, under such Facility, (II) the requested date of the Borrowing, conversion  or continuation, as the case may be (which shall be a Business Day), (III) the principal amount of  Loans to be borrowed, converted or continued, (IV) the Type of Loans to be borrowed or to which  existing Loans are to be converted, and (V) if applicable, the duration of the Interest Period with  respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower  fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall  be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans  shall be effective as of the last day of the Interest Period then in effect with respect to the applicable  Term SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of  Term SOFR Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed  to have specified an Interest Period of one (1) month. Notwithstanding anything to the contrary  herein, a Swingline Loan may not be converted to a Term SOFR Loan.   (b) Advances. Following receipt of a Loan Notice for a Facility, the Administrative  Agent shall promptly notify each Appropriate Lender of the amount of its Applicable Percentage  under such Facility of the applicable Loans, and if no timely notice of a conversion or continuation  is provided by the Borrower, the Administrative Agent shall notify each Appropriate Lender of the  details of any automatic conversion to Base Rate Loans described in Section 2.02(a). In the case of  a Borrowing, each Appropriate Lender shall make the amount of its Loan available to the  Administrative Agent in immediately available funds at the Administrative Agent’s Office not later  than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of  the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit  Extension, Section 4.01), the Administrative Agent shall make all funds so received available to  the Borrower in like funds as received by the Administrative Agent either by (i) crediting the  account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire  transfer of such funds, in each case in accordance with instructions provided to (and reasonably  acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date a  Loan Notice with respect to a Revolving Borrowing is given by the Borrower, there are L/C  Borrowings outstanding, then the proceeds of such Revolving Borrowing, first, shall be applied to  the payment in full of any such L/C Borrowings, and second, shall be made available to the  Borrower as provided above.  (c) Term SOFR Loans. Except as otherwise provided herein, a Term SOFR Loan may  be continued or converted only on the last day of an Interest Period for such Term SOFR Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as Term  SOFR Loans without the consent of the Required Lenders, and the Required Lenders may demand  that any or all of the outstanding Term SOFR Loans be converted immediately to Base Rate Loans.  (d) Interest Rates. Each determination of an interest rate by the Administrative Agent  pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and  the Lenders in the absence of manifest error.  (e) Interest Periods. After giving effect to all Term Borrowings, all conversions of  Term Loans and Incremental Term Loans from one Type to the other, and all continuations of Term  





 






40  Loans and Incremental Term Loans as the same Type, there shall not be more than five (5) Interest  Periods in effect in respect of the Term Facility and the Incremental Term Facility. After giving  effect to all Revolving Borrowings, all conversions of Revolving Loans from one Type to the other,  and all continuations of Revolving Loans as the same Type, there shall not be more than five (5)  Interest Periods in effect in respect of the Revolving Facility.  (f) Cashless Settlement Mechanism. Notwithstanding anything to the contrary in this  Agreement, any Lender may exchange, continue or rollover all or the portion of its Loans in  connection with any refinancing, extension, loan modification or similar transaction permitted by  the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the  Borrower, the Administrative Agent and such Lender.  (g) With respect to SOFR or Term SOFR, the Administrative Agent will have the right  to make Conforming Changes from time to time and, notwithstanding anything to the contrary  herein or in any other Loan Document, any amendments implementing such Conforming Changes  will become effective without any further action or consent of any other party to this Agreement or  any other Loan Document; provided that, with respect to any such amendment effected, the  Administrative Agent shall post each such amendment implementing such Conforming Changes to  the Borrower and the Lenders reasonably promptly after such amendment becomes effective.  2.03 Letters of Credit.   (a) The Letter of Credit Commitment. Subject to the terms and conditions set forth  herein, in addition to the Loans provided for in Section 2.01, the Borrower may request that the  L/C Issuer, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03,  issue, at any time and from time to time during the Availability Period, Letters of Credit  denominated in Dollars or in one or more Alternative Currencies for its own account or the account  of any of its Subsidiaries in such form as is acceptable to the Administrative Agent and the L/C  Issuer in its reasonable determination. Letters of Credit issued hereunder shall constitute utilization  of the Revolving Commitments.  (b) Notice of Issuance, Amendment, Extension, Reinstatement or Renewal.   (i) To request the issuance of a Letter of Credit (or the amendment of the  terms and conditions, extension of the terms and conditions, extension of the expiration  date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the  Borrower shall deliver (or transmit by electronic communication, if arrangements for doing  so have been approved by the L/C Issuer) to the L/C Issuer and to the Administrative Agent  not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the  Administrative Agent and the L/C Issuer may agree in a particular instance in their sole  discretion) prior to the proposed issuance date or date of amendment, as the case may be a  notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be  amended, extended, reinstated or renewed, and specifying the date of issuance,  amendment, extension, reinstatement or renewal (which shall be a Business Day), the date  on which such Letter of Credit is to expire (which shall comply with clause (d) of this  Section 2.03), the amount of such Letter of Credit, the name and address of the beneficiary  thereof, the purpose and nature of the requested Letter of Credit and such other information  as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If  requested by the L/C Issuer, the Borrower also shall submit a letter of credit application  and reimbursement agreement on the L/C Issuer’s standard form in connection with any  request for a Letter of Credit. In the event of any inconsistency between the terms and  





 






41  conditions of this Agreement and the terms and conditions of any form of letter of credit  application and reimbursement agreement or other agreement submitted by the Borrower  to, or entered into by the Borrower with, the L/C Issuer relating to any Letter of Credit, the  terms and conditions of this Agreement shall control.  (ii) If the Borrower so requests in any applicable Letter of Credit Application  (or the amendment of an outstanding Letter of Credit), the L/C Issuer may, in its sole  discretion, agree to issue a Letter of Credit that has automatic extension provisions (each,  an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of  Credit shall permit the L/C 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 by the Borrower and  the L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by the  L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer  for any such extension. Once an Auto-Extension Letter of Credit has been issued, the  Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer  to permit the extension of such Letter of Credit at any time to an expiration date not later  than the date permitted pursuant to Section 2.03(d); provided, that the L/C Issuer shall not  (A) permit any such extension if (1) the L/C Issuer has determined that it would not be  permitted, or would have no obligation, at such time to issue such Letter of Credit in its  extended form under the terms hereof (except that the expiration date may be extended to  a date that is no more than one (1) year from the then-current expiration date) or (2) it has  received notice (which may be in writing or by telephone (if promptly confirmed in  writing)) on or before the day that is seven (7) Business Days before the Non-Extension  Notice Date from the Administrative Agent that the Required Revolving Lenders have  elected not to permit such extension or (B) be obligated to permit such extension if it has  received notice (which may be in writing or by telephone (if promptly confirmed in  writing)) on or before the day that is seven (7) Business Days before the Non-Extension  Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that  one or more of the applicable conditions set forth in Section 4.02 is not then satisfied, and  in each such case directing the L/C Issuer not to permit such extension.  (c) Limitations on Amounts, Issuance and Amendment. A Letter of Credit shall be  issued, amended, extended, reinstated or renewed only if (and upon issuance, amendment,  extension, reinstatement or renewal of each Letter of Credit the Borrower shall be deemed to  represent and warrant that), after giving effect to such issuance, amendment, extension,  reinstatement or renewal (w) the aggregate amount of the outstanding Letters of Credit issued by  the L/C Issuer shall not exceed its L/C Commitment, (x) the aggregate L/C Obligations shall not  exceed the Letter of Credit Sublimit, (y) the Revolving Exposure of any Lender shall not exceed  its Revolving Commitment and (z) the Total Revolving Exposure shall not exceed the total  Revolving Commitments.  (i) The L/C Issuer shall not be under any obligation to issue any Letter of  Credit if:  (A) any order, judgment or decree of any Governmental Authority or  arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing  the Letter of Credit, or any Law applicable to the L/C Issuer or any request or  directive (whether or not having the force of law) from any Governmental  Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the  





 






42  L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of  Credit in particular or shall impose upon the L/C Issuer with respect to the Letter  of Credit any restriction, reserve or capital requirement (for which the L/C Issuer  is not otherwise compensated hereunder) not in effect on the Closing Date, or shall  impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not  applicable on the Closing Date and which the L/C Issuer in good faith deems  material to it;  (B) the issuance of such Letter of Credit would violate one or more  policies of the L/C Issuer applicable to letters of credit generally;  (C) except as otherwise agreed by the Administrative Agent and the  L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000, in  the case of a commercial Letter of Credit, or $200,000, in the case of a standby  Letter of Credit;  (D) any Revolving Lender is at that time a Defaulting Lender, unless  the L/C Issuer has entered into arrangements, including the delivery of Cash  Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower  or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure  (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender  arising from either the Letter of Credit then proposed to be issued or that Letter of  Credit and all other L/C Obligations as to which the L/C Issuer has actual or  potential Fronting Exposure, as it may elect in its sole discretion; or  (E) the Letter of Credit contains any provisions for automatic  reinstatement of the stated amount after any drawing thereunder.  (ii) The L/C Issuer shall be under no obligation to amend any Letter of Credit  if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in  its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does  not accept the proposed amendment to the Letter of Credit.  (d) Expiration Date. Each Letter of Credit shall have a stated expiration date no later  than the earlier of (i) the date twelve (12) months after the date of the issuance of such Letter of  Credit (or, in the case of any extension of the expiration date thereof, whether automatic or by  amendment, twelve months after the then-current expiration date of such Letter of Credit) and  (ii) the date that is five (5) Business Days prior to the Maturity Date.  (e) Participations.   (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit  increasing the amount or extending the expiration date thereof), and without any further  action on the part of the L/C Issuer or the Lenders, the L/C Issuer hereby grants to each  Revolving Lender, and each Revolving Lender hereby acquires from the L/C Issuer, a  participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the  aggregate amount available to be drawn under such Letter of Credit. Each Revolving  Lender acknowledges and agrees that its obligation to acquire participations pursuant to  this clause (e) in respect of Letters of Credit is absolute, unconditional and irrevocable and  shall not be affected by any circumstance whatsoever, including any amendment,  





 






43  extension, reinstatement or renewal of any Letter of Credit or the occurrence and  continuance of a Default or reduction or termination of the Revolving Commitments.  (ii) In consideration and in furtherance of the foregoing, each Revolving  Lender hereby absolutely, unconditionally and irrevocably agrees to pay in Dollars to the  Administrative Agent, for account of the L/C Issuer, such Lender’s Applicable Percentage  of the Dollar Equivalent of each L/C Disbursement made by the L/C Issuer not later than  1:00 p.m. on the Business Day specified in the notice provided by the Administrative Agent  to the Revolving Lenders pursuant to Section 2.03(f) until such L/C Disbursement is  reimbursed by the Borrower or at any time after any reimbursement payment is required to  be refunded to the Borrower for any reason, including after the Maturity Date. Such  payment shall be made without any offset, abatement, withholding or reduction  whatsoever. Each such payment shall be made in the same manner as provided in  Section 2.02 with respect to Loans made by such Lender (and Section 2.02 shall apply,  mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this  Section 2.03), and the Administrative Agent shall promptly pay to the L/C Issuer the  amounts so received by it from the Lenders. Promptly following receipt by the  Administrative Agent of any payment from the Borrower pursuant to Section 2.03(f), the  Administrative Agent shall distribute such payment to the L/C Issuer or, to the extent that  the Revolving Lenders have made payments pursuant to this clause (e) to reimburse the  L/C Issuer, then to such Lenders and the L/C Issuer as their interests may appear. Any  payment made by a Lender pursuant to this clause (e) to reimburse the L/C Issuer for any  L/C Disbursement shall not constitute a Loan and shall not relieve the Borrower of its  obligation to reimburse such L/C Disbursement.  (iii) Each Revolving Lender further acknowledges and agrees that its  participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s  Applicable Percentage of the aggregate amount available to be drawn under such Letter of  Credit at each time such Lender’s Commitment is amended pursuant to the operation of  Section 2.16, as a result of an assignment in accordance with Section 11.06 or otherwise  pursuant to this Agreement.  (iv) If any Revolving Lender fails to make available to the Administrative  Agent for the account of the L/C Issuer any amount required to be paid by such Lender  pursuant to the foregoing provisions of this Section 2.03(e), then, without limiting the other  provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender  (acting through the Administrative Agent), on demand, such amount with interest thereon  for the period from the date such payment is required to the date on which such payment  is immediately available to the L/C Issuer at a rate per annum equal to the greater of the  Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking  industry rules on interbank compensation, plus any administrative, processing or similar  fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender  pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute  such Lender’s Revolving Loan included in the relevant Revolving Borrowing or L/C  Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the  L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with  respect to any amounts owing under this clause (e)(iv) shall be conclusive absent manifest  error.  (f) Reimbursement. If the L/C Issuer shall make any L/C Disbursement in respect of  a Letter of Credit, the Borrower shall reimburse the L/C Issuer in respect of such L/C Disbursement  





 






44  by paying to the Administrative Agent an amount equal to such L/C Disbursement (in the  appropriate Alternative Currency, if applicable) not later than 12:00 noon on (i) the Business Day  that the Borrower receives notice of such L/C Disbursement, if such notice is received prior to  10:00 a.m. or (ii) the Business Day immediately following the day that the Borrower receives such  notice, if such notice is not received prior to such time, provided that, if such L/C Disbursement  (or the Dollar Equivalent thereof) is not less than $500,000, the Borrower may, subject to the  conditions to borrowing set forth herein, request in accordance with Section 2.02 or Section 2.04  that such payment be financed with a Borrowing of Base Rate Loans or Swingline Loan in an  equivalent amount (or Dollar Equivalent amount in the case of a Letter of Credit issued in an  Alternative Currency) and, to the extent so financed, the Borrower’s obligation to make such  payment shall be discharged and replaced by the resulting Borrowing of Base Rate Loans or  Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent  shall notify each Revolving Lender of the applicable L/C Disbursement, the payment then due from  the Borrower in respect thereof (the “Unreimbursed Amount”) and such Lender’s Applicable  Percentage thereof.  Promptly upon receipt of such notice, each Revolving Lender shall pay to the  Administrative Agent its Applicable Percentage of the Unreimbursed Amount pursuant to Section  2.03(e)(ii), subject to the amount of the unutilized portion of the aggregate Revolving  Commitments. Any notice given by the L/C Issuer or the Administrative Agent pursuant to this  Section 2.03(f) may be given by telephone if immediately confirmed in writing; provided that the  lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such  notice.  (g) Obligations Absolute. The Borrower’s obligation to reimburse L/C Disbursements  as provided in clause (f) of this Section 2.03 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, any other Loan  Document or any Letter of Credit, or any term or provision herein or therein;  (ii) the existence of any claim, counterclaim, setoff, defense or other right that  the Borrower or any Subsidiary may have at any time against any beneficiary or any  transferee of such Letter of Credit (or any Person for whom any such beneficiary or any  such transferee may be acting), the L/C Issuer or any other Person, whether in connection  with this Agreement, the transactions contemplated hereby or by such Letter of Credit or  any agreement or instrument relating thereto, or any unrelated transaction;  (iii) any draft, demand, certificate or other document presented under such  Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or  any statement in such draft or other document being untrue or inaccurate in any respect; or  any loss or delay in the transmission or otherwise of any document required in order to  make a drawing under such Letter of Credit;  (iv) waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s  protection and not the protection of the Borrower or any waiver by the L/C Issuer which  does not in fact materially prejudice the Borrower;  (v) honor of a demand for payment presented electronically even if such Letter  of Credit required that demand be in the form of a draft;  





 






45  (vi) any payment made by the L/C Issuer in respect of an otherwise complying  item presented after the date specified as the expiration date of, or the date by which  documents must be received under such Letter of Credit if presentation after such date is  authorized by the UCC, the ISP or the UCP, as applicable;  (vii) payment by the L/C Issuer under a Letter of Credit against presentation of  a draft or other document that does not comply strictly with the terms of such Letter of  Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person  purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of  creditors, liquidator, receiver or other representative of or successor to any beneficiary or  any transferee of such Letter of Credit, including any arising in connection with any  proceeding under any Debtor Relief Law;  (viii) any other event or circumstance whatsoever, whether or not similar to any  of the foregoing, that might, but for the provisions of this Section 2.03, constitute a legal  or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations  hereunder; or  (ix) any adverse change in the relevant exchange rates or in the availability of  the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant  currency markets generally.  (h) Examination. The Borrower shall promptly examine a copy of each Letter of Credit  and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance  with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C  Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C  Issuer and its correspondents unless such notice is given as aforesaid.  (i) Liability. None of the Administrative Agent, the Lenders, the L/C Issuer, or any of  their Related Parties shall have any liability or responsibility by reason of or in connection with the  issuance or transfer of any Letter of Credit by the L/C Issuer or any payment or failure to make any  payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence),  or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or  other communication under or relating to any Letter of Credit (including any document required to  make a drawing thereunder), any error in interpretation of technical terms, any error in translation  or any consequence arising from causes beyond the control of the L/C Issuer; provided that the  foregoing shall not be construed to excuse the L/C Issuer from liability to the Borrower to the extent  of any direct damages (as opposed to consequential damages, claims in respect of which are hereby  waived by the Borrower to the extent permitted by Applicable Law) suffered by the Borrower that  are caused by the L/C Issuer’s failure to exercise care when determining whether drafts and other  documents presented under a Letter of Credit comply with the terms thereof. The parties hereto  expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C  Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed  to have exercised care in each such determination, and that:  (i) the L/C Issuer may replace a purportedly lost, stolen, or destroyed original  Letter of Credit or missing amendment thereto with a certified true copy marked as such  or waive a requirement for its presentation;  (ii) the L/C Issuer may accept documents that appear on their face to be in  substantial compliance with the terms of a Letter of Credit without responsibility for further  





 






46  investigation, regardless of any notice or information to the contrary, and may make  payment upon presentation of documents that appear on their face to be in substantial  compliance with the terms of such Letter of Credit and without regard to any non- documentary condition in such Letter of Credit;  (iii) the L/C Issuer shall have the right, in its sole discretion, to decline to accept  such documents and to make such payment if such documents are not in strict compliance  with the terms of such Letter of Credit; and  (iv) this sentence shall establish the standard of care to be exercised by the L/C  Issuer when determining whether drafts and other documents presented under a Letter of  Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent  permitted by Applicable Law, any standard of care inconsistent with the foregoing).  Without limiting the foregoing, none of the Administrative Agent, the Lenders, the L/C  Issuer, or any of their Related Parties shall have any liability or responsibility by reason of  (A) any presentation that includes forged or fraudulent documents or that is otherwise  affected by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person,  (B) the L/C Issuer declining to take-up documents and make payment, (C) against  documents that are fraudulent, forged, or for other reasons by which that it is entitled not  to honor, (D) following a Borrower’s waiver of discrepancies with respect to such  documents or request for honor of such documents or (E) the L/C Issuer retaining proceeds  of a Letter of Credit based on an apparently applicable attachment order, blocking  regulation, or third-party claim notified to the L/C Issuer.  (j) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer  and the Borrower when a Letter of Credit is issued by it (including any such agreement applicable  to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,  and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the  foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights  and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer  required or permitted under any law, order, or practice that is required or permitted to be applied to  any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the  L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in  the decisions, opinions, practice statements, or official commentary of the ICC Banking  Commission, the Bankers Association for Finance and Trade – International Financial Services  Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or  not any Letter of Credit chooses such law or practice.  (k) Benefits. The L/C Issuer shall act on behalf of the Lenders with respect to any  Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have  all of the benefits and immunities (i) provided to the Administrative Agent in Article IX with  respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of  Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters  of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C  Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect  to the L/C Issuer.  (l) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the  account of each Revolving Lender in accordance with its Applicable Revolving Percentage a Letter  of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate  





 






47  times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount available to be drawn under any standby Letter of  Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) payable on the first Business Day following the end of each March,  June, September and December, commencing with the first such date to occur after the issuance of  such Letter of Credit and (ii) accrued through and including the last day of each calendar quarter in  arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available  to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate  separately for each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of the Required  Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the  Default Rate.  (m) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The  Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each  Letter of Credit, at the rate per annum equal to the percentage separately agreed upon between the  Borrower and the L/C Issuer, computed on the Dollar Equivalent of the daily amount available to  be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due  and payable no later than the tenth Business Day after the end of each March, June, September and  December in the most recently- ended quarterly period (or portion thereof, in the case of the first  payment), commencing with the first such date to occur after the issuance of such Letter of Credit,  on the Maturity Date and thereafter on demand. For purposes of computing the daily amount  available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be  determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the L/C  Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other  processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit  as from time to time in effect. Such customary fees and standard costs and charges are due and  payable on demand and are nonrefundable.  (n) Disbursement Procedures. The L/C Issuer for any Letter of Credit shall, within the  time allowed by Applicable Laws or the specific terms of the Letter of Credit following its receipt  thereof, examine all documents purporting to represent a demand for payment under such Letter of  Credit. The L/C Issuer shall promptly after such examination notify the Administrative Agent and  the Borrower in writing of such demand for payment if the L/C Issuer has made or will make an  L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall  not relieve the Borrower of its obligation to reimburse the L/C Issuer and the Lenders with respect  to any such L/C Disbursement.  (o) Interim Interest. If the L/C Issuer for any standby Letter of Credit shall make any  L/C Disbursement, then, unless the Borrower shall reimburse such L/C Disbursement in full on the  date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day  from and including the date such L/C Disbursement is made to but excluding the date that the  Borrower reimburses such L/C Disbursement, at the rate per annum then applicable to Base Rate  Loans; provided that if the Borrower fails to reimburse such L/C Disbursement when due pursuant  to clause (f) of this Section 2.03, then Section 2.08(b) shall apply. Interest accrued pursuant to this  clause (o) shall be for account of the L/C Issuer, except that interest accrued on and after the date  of payment by any Lender pursuant to clause (f) of this Section 2.03 to reimburse the L/C Issuer  shall be for account of such Lender to the extent of such payment.  (p) Replacement of the L/C Issuer. The L/C Issuer may be replaced at any time by  written agreement between the Borrower, the Administrative Agent, the replaced L/C Issuer and  





 






48  the successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such  replacement of the L/C Issuer. At the time any such replacement shall become effective, the  Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to  Section 2.03(m). From and after the effective date of any such replacement, (i) the successor L/C  Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect  to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “L/C Issuer”  shall be deemed to include such successor or any previous L/C Issuer, or such successor and all  previous L/C Issuer, as the context shall require. After the replacement of the L/C Issuer hereunder,  the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and  obligations of an L/C 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.  (q) Cash Collateralization.   (i) If any Event of Default shall occur and be continuing, on the Business Day  that the Borrower receives notice from the Administrative Agent or the Required  Revolving Lenders (or, if the maturity of the Loans has been accelerated, Revolving  Lenders with L/C Obligations representing at least 66-2/3% of the total L/C Obligations)  demanding the deposit of Cash Collateral pursuant to this clause (q), the Borrower shall  immediately deposit into an account established and maintained on the books and records  of the Administrative Agent (the “Collateral Account”) an amount in cash equal to 105%  of the total L/C Obligations as of such date plus any accrued and unpaid interest thereon,  provided that the obligation to deposit such Cash Collateral shall become effective  immediately, and such deposit shall become immediately due and payable, without demand  or other notice of any kind, upon the occurrence of any Event of Default with respect to  the Borrower described in clause (f) of Section 8.01. Such deposit shall be held by the  Administrative Agent as collateral for the payment and performance of the obligations of  the Borrower under this Agreement. In addition, and without limiting the foregoing or  clause (d) of this Section 2.03, if any L/C Obligations remain outstanding after the  expiration date specified in said clause (d), the Borrower shall immediately deposit into the  Collateral Account an amount in cash equal to 105% of such L/C Obligations as of such  date plus any accrued and unpaid interest thereon.  (ii) The Administrative Agent shall have exclusive dominion and control,  including the exclusive right of withdrawal, over the Collateral Account. Other than any  interest earned on the investment of such deposits, which investments shall be made at the  option and sole discretion of the Administrative Agent and at the Borrower’s risk and  expense, such deposits shall not bear interest. Interest or profits, if any, on such investments  shall accumulate in the Collateral Account. Moneys in the Collateral Account shall be  applied by the Administrative Agent to reimburse the L/C Issuer for L/C Disbursements  for which it has not been reimbursed, together with related fees, costs, and customary  processing charges, and, to the extent not so applied, shall be held for the satisfaction of  the reimbursement obligations of the Borrower for the L/C Obligations at such time or, if  the maturity of the Loans has been accelerated (but subject to the consent of Lenders with  L/C Obligations representing 66-2/3% of the total L/C Obligations), be applied to satisfy  other obligations of the Borrower under this Agreement. If the Borrower is required to  provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event  of Default, such amount (to the extent not applied as aforesaid) shall be returned to the  Borrower within three (3) Business Days after all Events of Default have been cured or  waived.  





 






49  (r) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit  issued or outstanding hereunder is in support of any obligations of, or is for the account of, a  Subsidiary, the Borrower shall be obligated to reimburse, indemnify and compensate the L/C Issuer  hereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been  issues solely for the account of the Borrower. The Borrower irrevocably waives any and all defenses  that might otherwise be available to it as a guarantor or surety of any or all of the obligations of  such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges that the  issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower,  and that the Borrower’s business derives substantial benefits from the businesses of such  Subsidiaries.  (s) Conflict with Issuer Documents. In the event of any conflict between the terms  hereof and the terms of any Issuer Document, the terms hereof shall control.  2.04 Swingline Loans.  (a) The Swingline. Subject to the terms and conditions set forth herein, the Swingline  Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in  its sole discretion make loans to the Borrower (each such loan, a “Swingline Loan”). Each such  Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Borrower,  in Dollars, from time to time on any Business Day during the Availability Period in an aggregate  amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided,  however, that (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings  shall not exceed the Revolving Facility at such time, (B) the Revolving Exposure of any Revolving  Lender at such time shall not exceed such Lender’s Revolving Commitment, and (C) the aggregate  amount of all Swingline Loans outstanding shall not exceed the Swingline Commitment of the  Swingline Lender, (ii) the Borrower shall not use the proceeds of any Swingline Loan to refinance  any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation  to make any Swingline Loan if it shall determine (which determination shall be conclusive and  binding absent manifest error) that it has, or by such Credit Extension may have, Fronting  Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the  Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this  Section 2.04. Each Swingline Loan shall bear interest only at a rate based on the Base Rate plus the  Applicable Rate. Immediately upon the making of a Swingline Loan, each Revolving Lender shall  be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline  Lender a risk participation in such Swingline Loan in an amount equal to the product of such  Revolving Lender’s Applicable Revolving Percentage times the amount of such Swingline Loan.  (b) Borrowing Procedures.  Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice  to the Swingline Lender and the Administrative Agent, which may be given by: (i)  telephone or (ii) a Swingline Loan Notice; provided that any telephonic notice must be  confirmed immediately by delivery to the Swingline Lender and the Administrative Agent  of a Swingline Loan Notice. Each such Swingline Loan Notice must be received by the  Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested  borrowing date, and shall specify (A) the amount to be borrowed, which shall be a  minimum of $250,000 or a whole multiple of $50,000 in excess thereof, and (B) the  requested date of the Borrowing (which shall be a Business Day). Promptly after receipt  by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will confirm  with the Administrative Agent (by telephone or in writing) that the Administrative Agent  





 






50  has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify  the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the  Swingline Lender has received notice (by telephone or in writing) from the Administrative  Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the date of  the proposed Swingline Borrowing (1) directing the Swingline Lender not to make such  Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence  of Section 2.04(a), or (2) that one or more of the applicable conditions specified in Article  IV is not then satisfied, then, subject to the terms and conditions hereof, the Swingline  Lender may, make the amount of its Swingline Loan available to the Borrower at its office  by crediting the account of the Borrower on the books of the Swingline Lender in  immediately available funds.  (c) Refinancing of Swingline Loans.  (i) The Swingline Lender at any time in its sole discretion may request, on  behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so  request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount  equal to such Lender’s Applicable Revolving Percentage of the amount of Swingline Loans  then outstanding. Such request shall be made in writing (which written request shall be  deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements  of Section 2.02, without regard to the minimum and multiples specified therein for the  principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving  Facility and the conditions set forth in Section 4.02. The Swingline Lender shall furnish  the Borrower with a copy of the applicable Loan Notice promptly after delivering such  notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to  its Applicable Revolving Percentage of the amount specified in such Loan Notice available  to the Administrative Agent in immediately available funds (and the Administrative Agent  may apply Cash Collateral available with respect to the applicable Swingline Loan) for the  account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00  p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii),  each Revolving Lender that so makes funds available shall be deemed to have made a Base  Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds  so received to the Swingline Lender.  (ii) Notwithstanding anything to the contrary in the foregoing, if for any  reason any Swingline Loan cannot be refinanced by such a Revolving Borrowing in  accordance with Section 2.04(c)(i) (including, without limitation, the failure to satisfy the  conditions set forth in Section 4.02), the request for Base Rate Loans submitted by the  Swingline Lender as set forth herein shall be deemed to be a request by the Swingline  Lender that each of the Revolving Lenders fund its risk participation in the relevant  Swingline Loan and each Revolving Lender’s payment to the Administrative Agent for the  account of Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in  respect of such participation.  (iii) If any Revolving Lender fails to make available to the Administrative  Agent for the account of the Swingline Lender any amount required to be paid by such  Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in  Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Lender  (acting through the Administrative Agent), on demand, such amount with interest thereon  for the period from the date such payment is required to the date on which such payment  is immediately available to the Swingline Lender at a rate per annum equal to the greater  





 






51  of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance  with banking industry rules on interbank compensation, plus any administrative,  processing or similar fees customarily charged by the Swingline Lender in connection with  the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the  amount so paid shall constitute such Lender’s Revolving Loan included in the relevant  Revolving Borrowing or funded participation in the relevant Swingline Loan, as the case  may be. A certificate of the Swingline Lender submitted to any Lender (through the  Administrative Agent) with respect to any amounts owing under this clause (c)(iii) shall be  conclusive absent manifest error.  (iv) Each Revolving Lender’s obligation to make Revolving Loans or to  purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c)  shall be absolute and unconditional and shall not be affected by any circumstance,  including (A) any setoff, counterclaim, recoupment, defense or other right which such  Lender may have against the Swingline Lender, the Borrower or any other Person for any  reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other  occurrence, event or condition, whether or not similar to any of the foregoing; provided,  however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to  this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery  by the Borrower of a Loan Notice). No such funding of risk participations shall relieve or  otherwise impair the obligation of the Borrower to repay Swingline Loans, together with  interest as provided herein.  (d) Repayment of Participations.  (i) At any time after any Revolving Lender has purchased and funded a risk  participation in a Swingline Loan, if the Swingline Lender receives any payment on  account of such Swingline Loan, the Swingline Lender will distribute to such Revolving  Lender its Applicable Revolving Percentage thereof in the same funds as those received by  the Swingline Lender.  (ii) If any payment received by the Swingline Lender in respect of principal  or interest on any Swingline Loan is required to be returned by the Swingline Lender under  any of the circumstances described in Section 11.05 (including pursuant to any settlement  entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to  the Swingline Lender its Applicable Revolving Percentage thereof on demand of the  Administrative Agent, plus interest thereon from the date of such demand to the date such  amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative  Agent will make such demand upon the request of the Swingline Lender. The obligations  of the Lenders under this clause shall survive the payment in full of the Obligations and  the termination of this Agreement.  (e) Interest for Account of Swingline Lender. The Swingline Lender shall be  responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Revolving  Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such  Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in respect  of such Applicable Revolving Percentage shall be solely for the account of the Swingline Lender.  (f) Payments Directly to Swingline Lender. The Borrower shall make all payments of  principal and interest in respect of the Swingline Loans directly to the Swingline Lender.  





 






52  2.05 Prepayments.  (a) Optional.  (i) The Borrower may, upon notice to the Administrative Agent pursuant to  delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from  time to time voluntarily prepay Term Loans, Incremental Term Loans and Revolving Loans  in whole or in part without premium or penalty subject to Section 3.05; provided that,  unless otherwise agreed by the Administrative Agent, (A) such notice must be received by  the Administrative Agent not later than 11:00 a.m. (1) two (2) Business Days prior to any  date of prepayment of Term SOFR Loans and (2) on the date of prepayment of Base Rate  Loans; (B) any prepayment of Term SOFR Loans shall be in a principal amount of  $1,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any prepayment of  Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of  $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then  outstanding. Each such notice shall specify the date and amount of such prepayment and  the Type(s) of Loans to be prepaid and, if Term SOFR Loans are to be prepaid, the Interest  Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its  receipt of each such notice, and of the amount of such Lender’s ratable portion of such  prepayment (based on such Lender’s Applicable Percentage in respect of the relevant  Facility). If such notice is given by the Borrower, the Borrower shall make such  prepayment and the payment amount specified in such notice shall be due and payable on  the date specified therein. Any prepayment of any Term SOFR Loan shall be accompanied  by all accrued interest on the amount prepaid, together with any additional amounts  required pursuant to Section 3.05. Each prepayment of the outstanding Term Loans and  Incremental Term Loans pursuant to this Section 2.05(a) shall be applied to the principal  repayment installments thereof as directed by the Borrower (and in the absence of such  direction, to the outstanding Term Loans and Incremental Term Loans on a pro-rata basis).  Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with  their respective Applicable Percentages in respect of each of the relevant Facilities.  (ii) The Borrower may, upon notice to the Swingline Lender pursuant to  delivery to the Swingline Lender of a Notice of Loan Prepayment (with a copy to the  Administrative Agent), at any time or from time to time, voluntarily prepay Swingline  Loans in whole or in part without premium or penalty; provided that, unless otherwise  agreed by the Swingline Lender, (A) such notice must be received by the Swingline Lender  and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and  (B) any such prepayment shall be in a minimum principal amount of $250,000 or a whole  multiple of $50,000 in excess hereof (or, if less, the entire principal thereof then  outstanding). Each such notice shall specify the date and amount of such prepayment. If  such notice is given by the Borrower, the Borrower shall make such prepayment and the  payment amount specified in such notice shall be due and payable on the date specified  therein.   (b) Mandatory.  (i) Dispositions and Involuntary Dispositions. The Borrower shall prepay the  Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided in an  aggregate amount equal to 100% of the Net Cash Proceeds received by any Loan Party or  any Subsidiary from all Dispositions (other than Permitted Transfers) and Involuntary  Dispositions within one (1) Business Day of the date of such Disposition or Involuntary  





 






53  Disposition; provided, however, that so long as no Default shall have occurred and be  continuing, such Net Cash Proceeds shall not be required to be so applied (A) until the  aggregate amount of the Net Cash Proceeds derived from any such Disposition or  Involuntary Disposition in any fiscal year of the Borrower is equal to or greater than  $5,000,000 and (B) at the election of the Borrower (as notified by the Borrower to the  Administrative Agent on or prior to the date that such prepayment would otherwise be  required) to the extent such Loan Party or such Subsidiary reinvests all or any portion of  such Net Cash Proceeds in operating assets (but specifically excluding current assets as  classified by GAAP) within twelve (12) months after the receipt of such Net Cash Proceeds  (or if committed to reinvestment during such twelve (12) month period, reinvested no later  than six (6) months thereafter); provided that, if such Net Cash Proceeds shall have not  been so reinvested, such Net Cash Proceeds shall be immediately applied to prepay the  Loans and/or Cash Collateralize the L/C Obligations.  (ii) Application of Payments. Each prepayment of Loans pursuant to the  foregoing provisions of clause (i) of this Section 2.05(b) shall be applied, first, to the  principal repayment installments of the Term Loan and Incremental Term Loans on a pro- rata basis for all such principal repayment installments, including, without limitation, the  final principal repayment installment on each applicable Maturity Date and, second, to the  Revolving Facility in the manner set forth in clause (iv) of this Section 2.05(b). Subject to  Section 2.15, such prepayments shall be paid to the Lenders in accordance with their  respective Applicable Percentages in respect of the relevant Facilities.  (iii) Revolving Outstandings. If for any reason the Total Revolving  Outstandings at any time exceed the Revolving Facility at such time, the Borrower shall  immediately prepay Revolving Loans, Swingline Loans and L/C Borrowings and/or Cash  Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,  however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations  pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and  Swingline Loans, the Total Revolving Outstandings exceed the Revolving Facility at such  time.  (iv) Application of Other Payments. Except as otherwise provided in Section  2.15, prepayments of the Revolving Facility made pursuant to this Section 2.05(b), first,  shall be applied ratably to the L/C Borrowings and the Swingline Loans, second, shall be  applied to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize  the remaining L/C Obligations; and, in the case of prepayments of the Revolving Facility  required pursuant to clause (i) of this Section 2.05(b), the amount remaining, if any, after  the prepayment in full of all L/C Borrowings, Swingline Loans and Revolving Loans  outstanding at such time and the Cash Collateralization of the remaining L/C Obligations  in full may be retained by the Borrower for use in the ordinary course of its business. Upon  the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as  Cash Collateral shall be applied (without any further action by or notice to or from the  Borrower or any other Loan Party or any Defaulting Lender that has provided Cash  Collateral) to reimburse the L/C Issuer or the Revolving Lenders, as applicable.  (v) Alternative Currencies. If the Administrative Agent notifies the Borrower  at any time that the Outstanding Amount of all L/C Obligations denominated in Alternative  Currencies at such time exceeds an amount equal to 105% of the Letter of Credit Sublimit  then in effect, then, within two (2) Business Days after receipt of such notice, the Borrower  shall Cash Collateralize Letters of Credit in an aggregate amount sufficient to reduce such  





 






54  Outstanding Amount as of such date of payment to an amount not to exceed 100% of the  Letter of Credit Sublimit then in effect.  Within the parameters of the applications set forth above, prepayments pursuant to this Section  2.05(b) shall be applied first to Base Rate Loans and then to Term SOFR Loans in direct order of Interest  Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise  without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through  the date of prepayment.  2.06 Termination or Reduction of Commitments.  (a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate  the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to  time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline  Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later  than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such  partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of  $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Revolving  Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total  Revolving Outstandings would exceed the Revolving Facility, (B) the Letter of Credit Sublimit if,  after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash  Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swingline Sublimit  if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding  Amount of Swingline Loans would exceed the Letter of Credit Sublimit.  (b) Mandatory.  (i) The aggregate Term Commitments shall be automatically and  permanently reduced to zero on the date of the Term Borrowing.  (ii) If after giving effect to any reduction or termination of Revolving  Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swingline  Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit or the  Swingline Sublimit, as the case may be, shall be automatically reduced by the amount of  such excess.  (c) Application of Commitment Reductions; Payment of Fees.  The Administrative Agent will promptly notify the Lenders of any termination or  reduction of the Letter of Credit Sublimit, Swingline Sublimit or the Revolving  Commitment under this Section 2.06. Upon any reduction of the Revolving Commitments,  the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s  Applicable Revolving Percentage of such reduction amount. All fees in respect of the  Revolving Facility accrued until the effective date of any termination of the Revolving  Facility shall be paid on the effective date of such termination.  2.07 Repayment of Loans.  (a) Term Loans. The Borrower shall repay to the Term Lenders the aggregate principal  amount of all Term Loans outstanding on the following dates in the respective amounts set forth  opposite such dates (which amounts shall be reduced as a result of the application of prepayments  





 






55  in accordance with the order of priority set forth in Section 2.05), unless accelerated sooner  pursuant to Section 8.02;  Payment Dates  Principal Repayment  Installments  December 31, 2022 $3,750,000  March 31, 2023 $3,750,000  June 30, 2023 $3,750,000  September 30, 2023 $3,750,000  December 31, 2023 $3,750,000  March 31, 2024 $3,750,000  June 30, 2024 $3,750,000  September 30, 2024 $3,750,000  December 31, 2024 $3,750,000  March 31, 2025 $3,750,000  June 30, 2025 $3,750,000  September 30, 2025 $3,750,000  December 31, 2025 $3,750,000  March 31, 2026 $3,750,000  June 30, 2026 $3,750,000  September 30, 2026 $3,750,000  December 31, 2026 $3,750,000  March 31, 2027 $3,750,000  June 30, 2027 $3,750,000  September 30, 2027 $3,750,000     provided, however, that (i) the final principal repayment installment of the Term Loans shall be  repaid on the Maturity Date for the Term Facility and in any event shall be in an amount equal to  the aggregate principal amount of all Term Loans outstanding on such date, (ii) if any principal  repayment installment to be made by the Borrower (other than principal repayment installments on  Term SOFR Loans) shall come due on a day other than a Business Day, such principal repayment  installment shall be due on the next succeeding Business Day, and such extension of time shall be  reflected in computing interest or fees, as the case may be and (iii) if any principal repayment  installment to be made by the Borrower on a Term SOFR Loan shall come due on a day other than  a Business Day, such principal repayment installment shall be extended to the next succeeding  Business Day unless the result of such extension would be to extend such principal repayment  installment into another calendar month, in which event such principal repayment installment shall  be due on the immediately preceding Business Day.  (b) Revolving Loans. The Borrower shall repay to the Revolving Lenders on the  Maturity Date for the Revolving Facility the aggregate principal amount of all Revolving Loans  outstanding on such date.  (c) Swingline Loans. The Borrower shall repay each Swingline Loan on the earlier to  occur of (i) the date ten (10) Business Days after such Loan is made and (ii) the Maturity Date for  the Revolving Facility.  (d) Incremental Term Loans.  The principal amount of any Incremental Term Loans  shall be repaid in the amounts and on the dates set forth in the applicable Incremental Agreement.  The outstanding unpaid principal balance and all accrued and unpaid interest on any Incremental  





 






56  Term Loans shall be due and payable on the Incremental Term Loan Maturity Date therefor as  specified in the applicable Incremental Agreement or, if earlier, on the date on which they are  declared due and payable pursuant to the terms of this Agreement.  2.08 Interest and Default Rate.  (a) Interest. Subject to the provisions of Section 2.08(b), (i) each Term SOFR Loan  under a Facility shall bear interest on the outstanding principal amount thereof for each Interest  Period from the applicable Borrowing date at a rate per annum equal to the Term SOFR for such  Interest Period plus the Applicable Rate for such Facility; (ii) each Base Rate Loan under a Facility  shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date  at a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility; and (iii) each  Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable  Borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for the  Revolving Facility. To the extent that any calculation of interest or any fee required to be paid  under this Agreement shall be based on (or result in) a calculation that is less than zero, such  calculation shall be deemed zero for purposes of this Agreement.  (b) Default Rate.  (i) If any amount of principal of any Loan is not paid when due, whether at  stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at  a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest  extent permitted by Applicable Laws.  (ii) If any amount (other than principal of any Loan) payable by the Borrower  under any Loan Document is not paid when due, whether at stated maturity, by acceleration  or otherwise, then upon the request of the Required Lenders such amount shall thereafter  bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate  to the fullest extent permitted by Applicable Laws.  (iii) Upon the request of the Required Lenders, while any Event of Default  exists (including a payment default), all outstanding Obligations (including Letter of Credit  Fees) may accrue at a fluctuating interest rate per annum at all times equal to the Default  Rate to the fullest extent permitted by Applicable Laws.  (iv) Accrued and unpaid interest on past due amounts (including interest on  past due interest) shall be due and payable upon demand.  (c) Interest Payments. Interest on each Loan shall be due and payable in arrears on  each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after  judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.  2.09 Fees.  In addition to certain fees described in clauses (l), (m) and (o) of Section 2.03:  (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the  account of each Revolving Lender in accordance with its Applicable Revolving Percentage, a  commitment fee equal to the Applicable Rate times the actual daily amount by which the Revolving  





 






57  Facility exceeds the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the  Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15. For the  avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted towards or  considered usage of the Revolving Facility for purposes of determining the commitment fee. The  commitment fee shall accrue at all times during the Availability Period, including at any time  during which one or more of the conditions in Article IV is not met, and shall be due and payable  quarterly in arrears on the last Business Day of each March, June, September and December,  commencing with the first such date to occur after the Closing Date, and on the last day of the  Availability Period for the Revolving Facility. The commitment fee shall be calculated quarterly in  arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount  shall be computed and multiplied by the Applicable Rate separately for each period during such  quarter that such Applicable Rate was in effect.  (b) Other Fees.  (i) The Borrower shall pay to the Administrative Agent and the Arrangers for  its own account fees in the amounts and at the times specified in the applicable Fee Letters.  Such fees shall be fully earned when paid and shall not be refundable for any reason  whatsoever.  (ii) The Borrower shall pay to the Lenders such fees as shall have been  separately agreed upon in writing in the amounts and at the times so specified. Such fees  shall be fully earned when paid and shall not be refundable for any reason whatsoever.  2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.  (a) Computation of Interest and Fees. All computations of interest for Base Rate Loans  (including Base Rate Loans determined by reference to the Term SOFR) shall be made on the basis  of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations  of fees and interest, shall be made on the basis of a three hundred sixty (360) day year and actual  days elapsed (which results in more fees or interest, as applicable, being paid than if computed on  the basis of a 365 day year). Interest shall accrue on each Loan for the day on which the Loan is  made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such  portion is paid, provided that any Loan that is repaid on the same day on which it is made shall,  subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative  Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent  manifest error.  (b) Financial Statement Adjustments or Restatements. If, as a result of any restatement  of or other adjustment to the financial statements of the Borrower and its Subsidiaries or for any  other reason, the Borrower or the Lenders determine that (i) the Consolidated Leverage Ratio as  calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of  the Consolidated Leverage Ratio would have resulted in higher pricing for such period, the  Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for  the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand  by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for  relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically  and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount  equal to the excess of the amount of interest and fees that should have been paid for such period  over the amount of interest and fees actually paid for such period. This clause (b) shall not limit the  rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under any  





 






58  provision of this Agreement to payment of any Obligations hereunder at the Default Rate or under  Article VIII. The Borrower’s obligations under this clause (b) shall survive the termination of the  Aggregate Commitments and the repayment of all other Obligations hereunder.  2.11 Evidence of Debt.  (a) Maintenance of Accounts. The Credit Extensions made by each Lender shall be  evidenced by one or more accounts or records maintained by such Lender in the ordinary course of  business. The Administrative Agent shall maintain the Register in accordance with Section  11.06(c). The accounts or records maintained by each Lender shall be conclusive absent manifest  error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest  and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or  otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to  the Obligations. In the event of any conflict between the accounts and records maintained by any  Lender and the Register, the Register shall control in the absence of manifest error. Upon the  request of any Lender made through the Administrative Agent, the Borrower shall execute and  deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such  Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its  Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and  payments with respect thereto.  (b) Maintenance of Records. In addition to the accounts and records referred to in  Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its  usual practice accounts or records evidencing the purchases and sales by such Lender of  participations in Letters of Credit and Swingline Loans. In the event of any conflict between the  accounts and records maintained by the Administrative Agent and the accounts and records of any  Lender in respect of such matters, the accounts and records of the Administrative Agent shall  control in the absence of manifest error.  2.12 Payments Generally; Administrative Agent’s Clawback.  (a) General. All payments to be made by the Borrower shall be made free and clear of  and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as  otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the  Administrative Agent, for the account of the respective Lenders to which such payment is owed, at  the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00  p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender  its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided  herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on  the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  Subject to Section 2.07(a) and as otherwise specifically provided for in this Agreement, if any  payment to be made by the Borrower shall come due on a day other than a Business Day, payment  shall be made on the next following Business Day, and such extension of time shall be reflected in  computing interest or fees, as the case may be.  (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the  Administrative Agent shall have received notice from a Lender prior to the proposed date of any  Borrowing of Term SOFR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to  12:00 noon on the date of such Borrowing) that such Lender will not make available to the  Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may  





 






59  assume that such Lender has made such share available on such date in accordance with Section  2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share  available in accordance with and at the time required by Section 2.02) and may, in reliance upon  such assumption, make available to the Borrower a corresponding amount. In such event, if a  Lender has not in fact made its share of the applicable Borrowing available to the Administrative  Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative  Agent forthwith on demand such corresponding amount in immediately available funds with  interest thereon, for each day from and including the date such amount is made available to the  Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a  payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined  by the Administrative Agent in accordance with banking industry rules on interbank compensation,  plus any administrative, processing or similar fees customarily charged by the Administrative  Agent in connection with the foregoing, and (B) in the case of a payment to be made by the  Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall  pay such interest to the Administrative Agent for the same or an overlapping period, the  Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the  Borrower for such period. If such Lender pays its share of the applicable Borrowing to the  Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in  such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the  Borrower may have against a Lender that shall have failed to make such payment to the  Administrative Agent.  (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless  the Administrative Agent shall have received notice from the Borrower prior to the date on  which any payment is due to the Administrative Agent for the account of the Lenders or  the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative  Agent may assume that the Borrower has made such payment on such date in accordance  herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders  or the L/C Issuer, as the case may be, the amount due. With respect to any payment that  the Administrative Agent makes for the account of the Appropriate Lenders or the L/C  Issuer hereunder as to which the Administrative Agent determines (which determination  shall be conclusive absent manifest error) that any of the following applies (such payment  referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made such  payment; (2) the Administrative Agent has made a payment in excess of the amount so  paid by the Borrower (whether or not then owed); or (3) the Administrative Agent has for  any reason otherwise erroneously made such payment, then each of the Appropriate  Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the  Administrative Agent forthwith on demand the amount so distributed to such Lender or the  L/C Issuer, in immediately available funds with interest thereon, for each day from and  including the date such amount is distributed to it to but excluding the date of payment to  the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined  by the Administrative Agent in accordance with banking industry rules on interbank  compensation.  A notice of the Administrative Agent to any Lender or the Borrower with respect to any  amount owing under this clause (b) shall be conclusive, absent manifest error.  (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the  Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing  provisions of this Article II, and such funds are not made available to the Borrower by the  Administrative Agent because the conditions to the applicable Credit Extension set forth in Article  





 






60  IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall  return such funds (in like funds as received from such Lender) to such Lender, without interest.  (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make  Term Loans, Incremental Term Loans (if any) and Revolving Loans, to fund participations in  Letters of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c) are  several and not joint. The failure of any Lender to make any Loan, to fund any such participation  or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve  any other Lender of its corresponding obligation to do so on such date, and no Lender shall be  responsible for the failure of any other Lender to so make its Loan, to purchase its participation or  to make its payment under Section 11.04(c).  (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain  the funds for any Loan in any particular place or manner or to constitute a representation by any  Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.  (f) Insufficient Funds. If at any time insufficient funds are received by and available  to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees  then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then  due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest  and fees then due to such parties, and (ii) second, toward payment of principal and L/C Borrowings  then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of  principal and L/C Borrowings then due to such parties.   (g) Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each  Borrowing (other than Swingline Borrowings) shall be made from the Appropriate Lenders, each  payment of fees under Section 2.09 and clauses (l), (m) and (o) of Section 2.03 shall be made for  account of the Appropriate Lenders, and each termination or reduction of the amount of the  Commitments shall be applied to the respective Commitments of the Lenders, pro rata according  to the amounts of their respective Commitments; (ii) each Borrowing shall be allocated pro rata  among the Lenders according to the amounts of their respective Commitments (in the case of the  making of Revolving Loans) or their respective Loans that are to be included in such Borrowing  (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of  principal of Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata  in accordance with the respective unpaid principal amounts of the Loans held by them; and (iv) each  payment of interest on Loans by the Borrower shall be made for account of the Appropriate Lenders  pro rata in accordance with the amounts of interest on such Loans then due and payable to the  respective Appropriate Lenders.  2.13 Sharing of Payments by Lenders.   If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment  in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder  and under the other Loan Documents at such time in excess of its ratable share (according to the proportion  of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate  amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under  the other Loan Documents at such time) of payments on account of the Obligations in respect of the  Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time  obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not  due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of  its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and  





 






61  payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the  Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents  at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and  payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the  Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater  proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value)  participations in the Loans and sub-participations in L/C Obligations and Swingline Loans of the other  Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall  be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the  Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the  case may be, provided that:  (1) if any such participations or sub-participations are  purchased and all or any portion of the payment giving rise thereto is  recovered, such participations or sub-participations shall be rescinded and  the purchase price restored to the extent of such recovery, without interest;  and  (2) the provisions of this Section 2.13 shall not be construed  to apply to (A) any payment made by or on behalf of the Borrower  pursuant to and in accordance with the express terms of this Agreement  (including the application of funds arising from the existence of a  Defaulting Lender), (B) the application of Cash Collateral provided for in  Section 2.14, or (C) any payment obtained by a Lender as consideration  for the assignment of or sale of a participation in any of its Loans or sub- participations in L/C Obligations or Swingline Loans to any assignee or  participant, other than an assignment to any Loan Party or any Affiliate  thereof (as to which the provisions of this Section 2.13 shall apply).  Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under  Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may  exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully  as if such Lender were a direct creditor of such Loan Party in the amount of such participation.  2.14 Cash Collateral.   (a) Obligation to Cash Collateralize. At any time there shall exist a Defaulting Lender,  within one Business Day following the written request of the Administrative Agent or the L/C  Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the L/C  Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect  to Section 2.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount  not less than the Minimum Collateral Amount.   (b) Grant of Security Interest. The Borrower, and to the extent provided by any  Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the  Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders,  and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all  balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds  of the foregoing, all as security for the obligations to which such Cash Collateral may be applied  pursuant to Section 2.14(c). If at any time the Administrative Agent determines that Cash Collateral  is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer  





 






62  as herein provided, or that the total amount of such Cash Collateral is less than the Minimum  Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or  provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate  such deficiency (determined in the case of Cash Collateral provided pursuant to Section 2.15(a)(v),  after giving effect to Section 2.15(a)(v) and any Cash Collateral provided by the Defaulting  Lender). All Cash Collateral (other than credit support not constituting funds subject to deposit)  shall be maintained in one or more Controlled Accounts at Bank of America. The Borrower shall  pay on demand therefor from time to time all customary account opening, activity and other  administrative fees and charges in connection with the maintenance and disbursement of Cash  Collateral.  (c) Application. Notwithstanding anything to the contrary contained in this  Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15 or  8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C  Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by  a Revolving Lender that is a Defaulting Lender, any interest accrued on such obligation) and other  obligations for which the Cash Collateral was so provided, prior to any other application of such  property as may be provided for herein.  (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce  Fronting Exposure or to secure other obligations shall be released promptly following (i) the  elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including  by the termination of Defaulting Lender status of the applicable Revolving Lender (or, as  appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination  by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided,  however, (A) any such release shall be without prejudice to, and any disbursement or other transfer  of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan  Documents and the other applicable provisions of the Loan Documents, and (B) the Person  providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released  but instead held to support future anticipated Fronting Exposure or other obligations.  2.15 Defaulting Lenders.    (a) Adjustments. Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by Applicable Law:  (i) Waivers and Amendments. Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be  restricted as set forth in the definition of “Required Lenders”, “Required Revolving  Lenders”, “Required Term Lenders”, “Required Incremental Term Lenders” and Section  11.01.  (ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or  other amounts received by the Administrative Agent for the account of such Defaulting  Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise)  or received by the Administrative Agent from a Defaulting Lender pursuant to Section  11.08 shall be applied at such time or times as may be determined by the Administrative  Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender  to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any  amounts owing by such Defaulting Lender to the L/C Issuer or the Swingline Lender  





 






63  hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to  such Defaulting Lender in accordance with Section 2.14; fourth, as the Borrower may  request (so long as no Default or Event of Default exists), to the funding of any Loan in  respect of which such Defaulting Lender has failed to fund its portion thereof as required  by this Agreement, as determined by the Administrative Agent; fifth, if so determined by  the Administrative Agent and the Borrower, to be held in a deposit account and released  pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding  obligations with respect to Loans under this Agreement and (B) Cash Collateralize the L/C  Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to  future Letters of Credit issued under this Agreement, in accordance with Section 2.14;  sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swingline  Lender as a result of any judgment of a court of competent jurisdiction obtained by any  Lender, the L/C Issuer or the Swingline Lender against such Defaulting Lender as a result  of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so  long as no Default or Event of Default exists, to the payment of any amounts owing to the  Borrower as a result of any judgment of a court of competent jurisdiction obtained by the  Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of  its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise  as may be required under the Loan Documents in connection with any Lien conferred  thereunder or directed by a court of competent jurisdiction; provided that if (x) such  payment is a payment of the principal amount of any Loans or L/C Borrowings in respect  of which such Defaulting Lender has not fully funded its appropriate share, and (y) such  Loans were made or the related Letters of Credit were issued at a time when the conditions  set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to  pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata  basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to,  such Defaulting Lender until such time as all Loans and funded and unfunded participations  in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance  with the Commitments hereunder without giving effect to Section 2.15(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 2.15(a)(ii) shall be deemed paid to and redirected by such  Defaulting Lender, and each Lender irrevocably consents hereto.  (iii) Certain Fees.  (A) Fees. No Defaulting Lender shall be entitled to receive any fee  payable under Section 2.09(a) for any period during which that Lender is a  Defaulting Lender (and the Borrower shall not be required to pay any such fee that  otherwise would have been required to have been paid to that Defaulting Lender).  (B) Letter of Credit Fees. Each Defaulting Lender shall be entitled to  receive Letter of Credit Fees for any period during which that Lender is a  Defaulting Lender only to the extent allocable to its Applicable Revolving  Percentage of the stated amount of Letters of Credit for which it has provided Cash  Collateral pursuant to Section 2.14.  (C) Defaulting Lender Fees. With respect to any Letter of Credit Fee  not required to be paid to any Defaulting Lender pursuant to clause (B) above, the  Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee  otherwise payable to such Defaulting Lender with respect to such Defaulting  





 






64  Lender’s participation in L/C Obligations or Swingline Loans that has been  reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay  to the L/C Issuer and the Swingline Lender, as applicable, the amount of any such  fee otherwise payable to such Defaulting Lender to the extent allocable to such  L/C Issuer’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender,  and (3) not be required to pay the remaining amount of any such fee.  (iv) Reallocation of Applicable Revolving Percentages to Reduce Fronting  Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and  Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance  with their respective Applicable Revolving Percentages (calculated without regard to such  Defaulting Lender’s Commitment) but only to the extent that such reallocation does not  cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such  Non-Defaulting Lender’s Revolving Commitment. Subject to Section 11.20, no  reallocation hereunder shall constitute a waiver or release of any claim of any party  hereunder against a Defaulting Lender arising from that Lender having become a  Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such  Non-Defaulting Lender’s increased exposure following such reallocation.  (v) Cash Collateral, Repayment of Swingline Loans. If the reallocation  described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower  shall, without prejudice to any right or remedy available to it hereunder or under Applicable  Law, (A) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s  Fronting Exposure and (B) second, Cash Collateralize the L/C Issuer’s Fronting Exposure  in accordance with the procedures set forth in Section 2.14.  (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline  Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the  Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified  in such notice and subject to any conditions set forth therein (which may include arrangements with  respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that  portion of outstanding Loans of the other Lenders or take such other actions as the Administrative  Agent may determine to be necessary to cause the Loans and funded and unfunded participations  in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with their  Revolving Commitments (without giving effect to Section 2.15(a)(iv)), whereupon such Lender  will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with  respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a  Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by  the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver  or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting  Lender.  (c) New Swingline Loans/Letters of Credit. So long as any Revolving Lender is a  Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans  unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline  Loan and (ii) the L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any  Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect  thereto.  





 






65  2.16 Incremental Facilities.  (a) Increase in Revolving Facility; Incremental Term Facility.  Subject to the terms  and conditions set forth herein, the Borrower shall have the right, by written notice to the  Administrative Agent, to request from time to time that one or more Lenders (and/or one or more  other Persons which are Eligible Assignees and which will become Lenders), (x) prior to the  Maturity Date for the Revolving Facility, provide an increase to the existing Revolving  Commitments (each, an “Incremental Revolving Commitment”) and/or (y) establish one or more  new term loan commitments (each, an “Incremental Term Commitment”), by an aggregate amount  (for all such requests) not exceeding $200,000,000, provided that, each Incremental Commitment  shall be in an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess  thereof.  (b) Lenders; Additional Lenders. Incremental Commitments may be provided by any  existing Lender (it being understood that no existing Lender will have an obligation to make a  portion of any Incremental Commitment unless it in its sole discretion so agrees) or by any other  Eligible Assignee (any such other bank, financial institution or other investor being called an  “Additional Lender”); provided that (w) the Administrative Agent shall have consented (such  consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s  making such Incremental Term Loans or providing such Incremental Revolving Commitment if  such consent would be required under Section 11.06(b)(iii)(B) for an assignment of Loans or  Commitments, as applicable, to such Lender or Additional Lender; (x) solely with respect to any  Incremental Revolving Commitment, the Swingline Lender and each L/C Issuer shall have  consented (such consent not to be unreasonably withheld or delayed) to such Additional Lenders  providing such Incremental Revolving Commitment if such consent would be required under  Section 11.06(b)(iii)(C) for an assignment of Loans or Commitments, as applicable, to such Lender  or Additional Lender; (y) the limitations on assignments to certain Persons as set forth in Section  11.06 shall also be applicable with respect to any Additional Lender; and (z) any Additional Lender  shall execute and deliver an Incremental Agreement.  (c) Incremental Term Commitments.  The terms and provisions (including, without  limitation, pricing and amortization) for each Incremental Term Loan shall be set forth in the  Incremental Agreement with respect to such Incremental Term Loan; provided that in any event,  (i) the weighted average life to maturity of any Incremental Term Loan shall  be no shorter than the remaining weighted average life to maturity of the then existing  Term Loans (including any then existing Incremental Term Loans);  (ii) the maturity date of each Incremental Term Loan (the “Incremental Term  Loan Maturity Date”) shall not be earlier than the latest Maturity Date under any Facility  (including any then outstanding Incremental Term Loans); and  (iii)  the Applicable Rate and all-in yield for each Incremental Term Loan shall  be determined by the Borrower and the Lenders of the Incremental Term Loans;  provided further that, except as otherwise set forth herein, all of the other terms and conditions applicable  to such Incremental Term Loans shall be substantially consistent with the terms and conditions applicable  to the existing Term Loans, and to the extent that the terms and provisions of Incremental Term Loans are  not substantially consistent with the existing Term Loans (except to the extent permitted by clause (i), (ii)  or (iii) above) they shall be reasonably satisfactory to the Administrative Agent, the Lenders providing such  Incremental Term Loans and the Borrower.  





 






66  (d) Incremental Revolving Commitments.  The terms and provisions of the  Incremental Revolving Commitment shall be identical to the Revolving Loans and the Revolving  Commitments and, for purposes of this Agreement and the other Loan Documents, all Revolving  Loans made under the Incremental Revolving Commitment shall be deemed to be Revolving Loans  of the same Class as the Revolving Loans under the Revolving Commitments. Without limiting the  generality of the foregoing, (A) the rate of interest applicable to the Incremental Revolving  Commitment shall be the same as the rate of interest applicable to the existing Revolving Loans,  (B) commitment fees applicable to the Incremental Revolving Commitment shall be calculated  using the same commitment fees applicable to the existing Revolving Loans and (C) the  Incremental Revolving Commitment shall share ratably in any mandatory prepayments of the  Revolving Loans.  (e) Notice to Administrative Agent; Lender Elections.  Each notice from the Borrower  pursuant to this Section 2.16 shall be given in writing and shall set forth the requested amount and  proposed terms of the relevant Incremental Term Loans or Incremental Revolving Commitment,  including (x) the time period within which the Lenders are requested to respond (which shall in no  event be less than ten (10) Business Days from the date of delivery of such notice) and (y) the date  on which the Borrower proposes that the Incremental Commitments shall be effective.  Each Lender  shall notify the Administrative Agent within such time period of its Incremental Commitment, if  any.  Any Lender not responding within such time period shall be deemed to have declined to  provide an Incremental Commitment.    (f) Conditions to Effectiveness of Incremental Commitments.  Commitments in  respect of Incremental Term Loans and Incremental Revolving Commitments shall become  Commitments (or in the case of an Incremental Revolving Commitments to be provided by an  existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving  Commitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to  this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, the  Guarantors, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if  any, and the Administrative Agent, in form and substance reasonably satisfactory to each of them.   The Incremental Agreement may, subject to Section 2.16, without the consent of any other Lenders,  effect such amendments to this Agreement and the other Loan Documents as may be necessary, in  the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of  this Section 2.16 (including, in connection with an Incremental Revolving Commitment, to  reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The  effectiveness of any Incremental Agreement, and the occurrence of any Credit Extension  thereunder, shall be subject to the satisfaction on the date thereof (each, an “Incremental Effective  Date”) of such conditions as the parties thereto shall agree and as set forth below:   (i) no Default shall have occurred and be continuing or would result from the  borrowings to be made on the Incremental Effective Date;  (ii) the representations and warranties contained in Article V and the other  Loan Documents are true and correct in all respects (or in all material respects for such  representations and warranties that are not by their terms already qualified by materiality),  on and as of the Incremental Effective Date, and except that for purposes of this Section  2.16, the representations and warranties contained in clauses (a) and (b) of Section 5.05  shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and  (b), respectively, of Section 6.01;   





 






67  (iii) on a pro forma basis (assuming all Incremental Commitments are fully  drawn), the Borrower shall be in compliance with each of the covenants set forth in Section  7.11 as of the end of the latest fiscal quarter for which financial statements have been  delivered pursuant to Section 6.01(a) or (b);  (iv) the Borrower shall make any breakage payments in connection with any  adjustment of Revolving Loans pursuant to Section 2.16(g); and  (v) the Borrower shall deliver or cause to be delivered officer’s certificates  and legal opinions of the type delivered on the Closing Date to the extent reasonably  requested by, and in form and substance reasonably satisfactory to, the Administrative  Agent;  (g) Reallocation.  Upon each Incremental Revolving Commitment pursuant to this  Section, each Lender with a Revolving Commitment immediately prior to such increase will  automatically and without further act be deemed to have assigned to each Lender providing a  portion of the Incremental Revolving Commitment (each, an “Incremental Revolving Commitment  Lender”) in respect of such increase, and each such Incremental Revolving Commitment Lender  will automatically and without further act be deemed to have assumed, a portion of such Lender’s  participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after  giving effect to each such deemed assignment and assumption of participations, the percentage of  the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations  hereunder in Swingline Loans held by each Lender with a Revolving Commitment (including each  such Incremental Revolving Commitment Lender) will equal the percentage of the aggregate  Revolving Commitments of all Lenders represented by such Lender’s Revolving Commitment. If,  on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans  shall on or prior to the effectiveness of such Incremental Revolving Commitment be prepaid from  the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving  Commitments), which prepayment shall be accompanied by accrued interest on the Revolving  Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05, to the  extent necessary to maintain the pro rata exposures among the Lenders with Revolving  Commitments. The Administrative Agent and the Lenders hereby agree that the minimum  borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this  Agreement shall not apply to the transactions effected pursuant to the immediately preceding  sentence.  If there is a new borrowing of Revolving Loans on such Incremental Effective Date, the  Revolving Lenders after giving effect to such Incremental Effective Date shall make such  Revolving Loans in accordance with Section 2.01(b).  (h) Making of New Incremental Term Loans.  On any Incremental Effective Date on  which new Incremental Term Commitments are effective, subject to the satisfaction of the  foregoing terms and conditions, each Lender of such new Incremental Term Commitments shall  make an Incremental Term Loan to the Borrower in an amount equal to its new Incremental Term  Commitment.  (i) Equal and Ratable Benefit.  The Incremental Term Loans and Incremental  Commitments established pursuant to this Section 2.16 shall constitute Loans, Commitments and  Obligations under, and shall be entitled to all the benefits afforded by, this Agreement and the other  Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the  Guarantees.  The Borrower will use the proceeds of the Incremental Term Loans and Incremental  Revolving Commitments for any purpose not prohibited by this Agreement. This Section 2.16 shall  supersede any provisions in Section 2.13 or Section 11.01 to the contrary.  





 






68  ARTICLE III    TAXES, YIELD PROTECTION AND ILLEGALITY  3.01 Taxes.   (a) Defined Terms. For purposes of this Section 3.01, the term “Applicable Law”  includes FATCA and the term “Lender” includes any L/C Issuer.  (b) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.  Any and all payments by or on account of any obligation of any Loan Party under any Loan  Document shall be made without deduction or withholding for any Taxes, except as required by  Applicable Laws. If any Applicable Laws (as determined in the good faith discretion of an  applicable Withholding Agent) require the deduction or withholding of any Tax from any such  payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make  such deduction or withholding and shall timely pay the full amount deducted or withheld to the  relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an  Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary  so that after any required withholding or the making of all required deductions (including  deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient  receives an amount equal to the sum it would have received had no such withholding or deduction  been made.  (c) Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to  the relevant Governmental Authority in accordance with Applicable Law, or at the option of the  Administrative Agent timely reimburse it for the payment of, any Other Taxes.  (d) Tax Indemnifications.  (i) Each of the Loan Parties shall, and does hereby, jointly and severally  indemnify each Recipient, and shall make payment in respect thereof within ten (10) days  after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified  Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01)  payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or  with respect thereto, 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), or by the Administrative Agent on its own behalf or on behalf of a  Lender, shall be conclusive absent manifest error. Each of the Loan Parties shall also, and  does hereby, jointly and severally indemnify the Administrative Agent, and shall make  payment in respect thereof within ten (10) days after demand therefor, for any amount  which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as  required pursuant to Section 3.01(d)(ii) below.  (ii) Each Lender shall, and does hereby, severally indemnify and shall make  payment in respect thereof within ten (10) days after demand therefor, (A) the  Administrative Agent against any Indemnified Taxes attributable to such Lender (but only  to the extent that any Loan Party has not already indemnified the Administrative Agent for  such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so),  (B) the Administrative Agent and the Loan Parties, as applicable, against any Taxes  





 






69  attributable to such Lender’s failure to comply with the provisions of Section 11.06(d)  relating to the maintenance of a Participant Register and (C) the Administrative Agent and  the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in  each case, that are payable or paid by the Administrative Agent or a Loan Party in  connection with any Loan Document, and any reasonable expenses arising therefrom or  with respect thereto, whether or not such Taxes were correctly or legally imposed or  asserted by the relevant Governmental Authority. A certificate as to the amount of such  payment or liability delivered to any Lender by the Administrative Agent shall be  conclusive absent manifest error. Each Lender 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 clause (d)(ii).  (e) Evidence of Payments. As soon as practicable after any payment of Taxes by any  Loan Party to a Governmental Authority, as provided in this Section 3.01, the Borrower 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 any return reporting such payment or  other evidence of such payment reasonably satisfactory to the Administrative Agent.  (f) Status of Lenders; Tax Documentation.  (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall deliver  to the Borrower and the Administrative Agent, at the time or times reasonably requested  by the Borrower or the Administrative Agent, such properly completed and executed  documentation reasonably requested by the Borrower or the Administrative Agent as will  permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative  Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably  requested by the Borrower or the Administrative Agent as will enable the Borrower or the  Administrative Agent to determine whether or not such Lender is subject to backup  withholding or information reporting requirements. Notwithstanding anything to the  contrary in the preceding two sentences, the completion, execution and submission of such  documentation (other than such documentation set forth in Section 3.01(f)(ii)(A), (ii)(B)  and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such  completion, execution or submission would subject such Lender to any material  unreimbursed cost or expense or would materially prejudice the legal or commercial  position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the  Borrower is a U.S. Person,  (A) any Lender that is a U.S. Person shall deliver to the Borrower and  the Administrative Agent on or prior to the date on which such Lender becomes a  Lender under this Agreement (and from time to time thereafter upon the reasonable  request of the Borrower or the Administrative Agent), executed copies of IRS  Form W–9 certifying that such Lender is exempt from U.S. federal backup  withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number of copies  





 






70  as shall be requested by the recipient) on or prior to the date on which such Foreign  Lender becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent),  whichever of the following is applicable:  (1) in the case of a Foreign Lender claiming the benefits of  an income tax treaty to which the United States is a party (x) with respect  to payments of interest under any Loan Document, executed copies of IRS  Form W–8BEN–E (or W–8BEN, as applicable) establishing an exemption  from, or reduction of, U.S. federal withholding Tax pursuant to the  “interest” article of such tax treaty and (y) with respect to any other  applicable payments under any Loan Document, IRS Form W–8BEN–E  (or W–8BEN, as applicable) establishing an exemption from, or reduction  of, U.S. federal withholding Tax pursuant to the “business profits” or  “other income” article of such tax treaty;  (2) executed copies of IRS Form W–8ECI;  (3) in the case of a Foreign Lender claiming the benefits of  the exemption for portfolio interest under Section 881(c) of the Code, (x)  a certificate substantially in the form of Exhibit L–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– E (or W–8BEN, as applicable); or  (4) 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–E (or W–8BEN, as applicable), a U.S. Tax  Compliance Certificate substantially in the form of Exhibit L–2 or Exhibit  L–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 L–4 on behalf of each such direct and indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number of copies  as shall be requested by the recipient) on or prior to the date on which such Foreign  Lender becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent),  executed copies (or originals, as required) 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  





 






71  (D) if a payment made to a Lender under any Loan Document would  be subject to U.S. federal withholding Tax imposed by FATCA if such Lender  were to fail to comply with the applicable reporting requirements of FATCA  (including those contained in Section 1471(b) or 1472(b) of the Code, as  applicable), such Lender shall deliver to the Borrower and the Administrative  Agent at the time or times prescribed by law and at such time or times reasonably  requested by the Borrower or the Administrative Agent such documentation  prescribed by Applicable Law (including as prescribed by Section  1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably  requested by the Borrower or the Administrative Agent as may be necessary for  the Borrower and the Administrative Agent to comply with their obligations under  FATCA and to determine that such Lender has complied with such Lender’s  obligations under FATCA or to determine the amount to deduct and withhold from  such payment. Solely for the purposes of this clause (f)(ii)(D) and clause (f)(iv)  below, “FATCA” shall include any amendments made to FATCA after the date of  this Agreement.  (iii) Each Lender agrees that if any form or certification it previously delivered  pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it  shall update such form or certification or promptly notify the Borrower and the  Administrative Agent in writing of its legal inability to do so.  (iv) For purposes of determining withholding Taxes imposed under FATCA,  from and after the Closing Date, the Borrower and the Administrative Agent shall treat  (and the Lenders hereby authorize the Administrative Agent to treat) the Loans as not  qualifying as “grandfathered obligations” within the meaning of Treasury Regulation  Section 1.1471–2(b)(2)(i).  (g) Treatment of Certain Refunds. Unless required by Applicable Laws, at no time  shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a  Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted  from funds paid for the account of such Lender. If any Recipient determines, in its sole discretion  exercised in good faith, that it has received a refund of any Taxes as to which it has been  indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts  pursuant to this Section 3.01, it shall pay to such 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 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket  expenses (including Taxes) incurred by such Recipient, 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 each Loan Party, upon the request of the Recipient, 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 Recipient in the event the Recipient is required to repay such refund  to such Governmental Authority. Notwithstanding anything to the contrary in this clause (g), in no  event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to  this clause (g) the payment of which would place the Recipient in a less favorable net after-Tax  position than such Recipient would have been in if the Tax subject to indemnification and giving  rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification  payments or additional amounts with respect to such Tax had never been paid. This clause (g) shall  not be construed to require any Recipient to make available its tax returns (or any other information  relating to its Taxes that it deems confidential) to any Loan Party or any other Person.  





 






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





 






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





 






74  case, without any amendment to, or further action or consent of any other party to, this Agreement  or any other Loan Document (the “Successor Rate”).    If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest  payments will be payable on a quarterly basis.    Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines  that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii)  if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with  respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the  Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then  current Successor Rate in accordance with this Section 3.03 at the end of any Interest Period,  relevant interest payment date or payment period for interest calculated, as applicable, with an  alternative benchmark rate giving due consideration to any evolving or then existing convention  for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for  such alternative benchmark. and, in each case, including any mathematical or other adjustments to  such benchmark giving due consideration to any evolving or then existing convention for similar  U.S. dollar denominated credit facilities syndicated and agented in the United States for such  benchmark, which adjustment or method for calculating such adjustment shall be published on an  information service as selected by the Administrative Agent from time to time in its reasonable  discretion and may be periodically updated.  For the avoidance of doubt, any such proposed rate  and adjustments, shall constitute a “Successor Rate”.  Any such amendment shall become effective  at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such  proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders  comprising the Required Lenders have delivered to the Administrative Agent written notice that  such Required Lenders object to such amendment.  The Administrative Agent will promptly (in one or more notices) notify the Borrower and  each Lender of the implementation of any Successor Rate.  Any Successor Rate shall be applied in a manner consistent with market practice; provided  that to the extent such market practice is not administratively feasible for the Administrative Agent,  such Successor Rate shall be applied in a manner as otherwise reasonably determined by the  Administrative Agent.  Notwithstanding anything else herein, if at any time any Successor Rate as so determined  would otherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes  of this Agreement and the other Loan Documents.  In connection with the implementation of a Successor Rate, the Administrative Agent will  have the right to make Conforming Changes from time to time and, notwithstanding anything to  the contrary herein or in any other Loan Document, any amendments implementing such  Conforming Changes will become effective without any further action or consent of any other party  to this Agreement; provided that, with respect to any such amendment effected, the Administrative  Agent shall post each such amendment implementing such Conforming Changes to the Borrower  and the Lenders reasonably promptly after such amendment becomes effective.  3.04 Increased Costs.   (a) Increased Costs Generally. If any Change in Law shall:  





 






75  (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 L/C Issuer;  (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes,  (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and  (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,  or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;  or  (iii) impose on any Lender or the L/C Issuer or any applicable interbank market  any other condition, cost or expense affecting this Agreement or Term SOFR Loans made  by such Lender or any Letter of Credit or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender of making,  converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any  such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or  maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any  Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the  L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of  such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case  may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as  the case may be, for such additional costs incurred or reduction suffered.  (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change  in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such  Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements  has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s  capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a  consequence of this Agreement, the Commitments of such Lender or the Loans made by, or  participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit  issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s  or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into  consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the  L/C Issuer’s holding company with respect to capital adequacy), then from time to time the  Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or  amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s  holding company for any such reduction suffered.  (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting  forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding  company, as the case may be, as specified in clause (a) or (b) of this Section 3.04 and delivered to  the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the  L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10)  days after receipt thereof.  (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to  demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute  a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that  the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the  foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered  





 






76  more than nine (9) months prior to the date that such Lender or the L/C Issuer, as the case may be,  notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of  such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the  Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9)  month period referred to above shall be extended to include the period of retroactive effect thereof).  3.05 Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the  Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost  or expense incurred by it as a result of:  (a) any continuation, conversion, payment or prepayment of any Loan other than a  Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether  voluntary, mandatory, automatic, by reason of acceleration, or otherwise);  (b) any failure by the Borrower (for a reason other than the failure of such Lender to  make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the  date or in the amount notified by the Borrower; or  (c) any assignment of a Term SOFR Loan on a day other than the last day of the  Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;   including any loss of anticipated profits and any loss or expense arising from the liquidation or  reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the  deposits from which such funds were obtained. The Borrower shall also pay any customary  administrative fees charged by such Lender in connection with the foregoing.  3.06 Mitigation Obligations; Replacement of Lenders.   (a) Designation of a Different Lending Office. If any Lender requests compensation  under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts  to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the  L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then  at the request of the Borrower, such Lender or the L/C Issuer shall, as applicable, 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 or the L/C Issuer, such designation or assignment (i) would eliminate or  reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or  eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would  not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense  and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or  the L/C Issuer in connection with any such designation or assignment.  (b) Replacement of Lenders. If any Lender requests compensation under Section 3.04,  or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender  or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each  case, such Lender has declined or is unable to designate a different lending office in accordance  with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.  





 






77  3.07 Survival.  All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate  Commitments, repayment of all other Obligations hereunder, resignation of the Administrative Agent and  the Facility Termination Date.  ARTICLE IV    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  4.01 Conditions of Initial Credit Extension.  The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is  subject to satisfaction of the following conditions precedent:  (a) Execution of Credit Agreement; Loan Documents. The Administrative Agent shall  have received (i) counterparts of this Agreement, executed by a Responsible Officer of each Loan  Party and a duly authorized officer of each Lender, (ii) for the account of each Lender requesting a  Note, a Note executed by a Responsible Officer of the Borrower, and (iii)  counterparts of any other  Loan Document, executed by a Responsible Officer of the applicable Loan Party and a duly  authorized officer of each other Person party thereto.  (b) Officer’s Certificate. The Administrative Agent shall have received an officer’s  certificate dated the Closing Date, certifying as to the Organization Documents of each Loan Party  (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by  such Governmental Authority), the resolutions of the governing body of each Loan Party, the good  standing, existence or its equivalent of each Loan Party and of the incumbency (including specimen  signatures) of the Responsible Officers of each Loan Party.  (c) Legal Opinions of Counsel. The Administrative Agent shall have received an  opinion or opinions (including, if requested by the Administrative Agent, local counsel opinions)  of counsel for the Loan Parties, dated the Closing Date and addressed to the Administrative Agent  and the Lenders, in form and substance acceptable to the Administrative Agent.  (d) Financial Statements. The Administrative Agent and the Lenders shall have  received copies of the financial statements referred to in Section 5.05, each in form and substance  satisfactory to each of them.  (e) Lien Searches. The Administrative Agent shall have received, in form and  substance satisfactory to the Administrative Agent: (A) searches of UCC filings in the jurisdiction  of incorporation or formation, as applicable, of each Loan Party, copies of the financing statements  on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax  lien, judgment and bankruptcy searches.  (f) Liability, Casualty, Property, Terrorism and Business Interruption Insurance. The  Administrative Agent shall have received declaration pages or insurance binders evidencing  liability, casualty, property, terrorism and business interruption insurance meeting the requirements  set forth herein or as required by the Administrative Agent. The Loan Parties shall have delivered  to the Administrative Agent an Authorization to Share Insurance Information.  





 






78  (g) Solvency Certificate. The Administrative Agent shall have received a Solvency  Certificate signed by a Responsible Officer of the Borrower as to the financial condition, solvency  and related matters of the Borrower and its Subsidiaries, after giving effect to the initial Borrowings  under the Loan Documents and the other transactions contemplated hereby.  (h) Financial Condition Certificate. The Administrative Agent shall have received a  certificate or certificates executed by a Responsible Officer of the Borrower as of the Closing Date,  in form and substance satisfactory to the Administrative Agent, certifying as to the Consolidated  forecasted balance sheet, statements of income and cash flows of the Borrower and its Subsidiaries,  prepared on a pro forma basis as of December 31, 2022 after giving effect to the Transactions, and  on annual basis thereafter for each year during the term of this Agreement.   (i) Loan Notice. The Administrative Agent shall have received a Loan Notice with  respect to the Loans to be made on the Closing Date.  (j) Existing Indebtedness of the Loan Parties.   (i) All of the existing Indebtedness for borrowed money of the Borrower and  its Subsidiaries (other than Indebtedness permitted to exist pursuant to Section 7.02) shall  be repaid in full and all Liens and other security interests related thereto shall be terminated  on or prior to the Closing Date.  (ii) All amounts required to be repaid on the Closing Date pursuant to Section  11.22 with respect to the Existing Credit Agreement shall be repaid in full.  (k) Anti-Money-Laundering; Beneficial Ownership. Upon the reasonable request of  any Lender, the Borrower shall have provided to such Lender, and such Lender shall be reasonably  satisfied with, the documentation and other information so requested in connection with applicable  “know your customer” and anti-money-laundering rules and regulations, including, without  limitation, the Patriot Act, and any Loan Party that qualifies as a “legal entity customer” under the  Beneficial Ownership Regulation shall have delivered to each Lender that so requests, a Beneficial  Ownership Certification in relation to such Loan Party.  (l) Consents. The Administrative Agent shall have received evidence that all  members, boards of directors, governmental, shareholder and material third party consents and  approvals necessary in connection with the Transactions have been obtained.  (m) Litigation.  No action, suit, investigation or proceeding shall be pending or, to the  knowledge of the Loan Parties, threatened in any court or before any Governmental Authority  against any Loan Party that could reasonably be expected to have a Material Adverse Effect.  (n) Fees and Expenses. The Administrative Agent, the Arrangers and the Lenders shall  have received all fees and expenses, if any, owing pursuant to the Fee Letters and Section 2.09, and  subject to the applicable Fee Letter, all reasonable fees and expenses of Chapman and Cutler LLP  and any local counsel to the Administrative Agent, in each case as evidenced by an invoice provided  to the Borrower on or prior to the Closing Date.  (o) Due Diligence. The Lenders shall have completed a due diligence investigation of  the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders.  





 






79  (p) Other Documents. All other documents provided for herein or which the  Administrative Agent or any other Lender may reasonably request or require.  (q) Additional Information. Such additional information and materials which the  Administrative Agent and/or any Lender shall reasonably request or require.  Without limiting the generality of the provisions of Section 9.03(c), for purposes of determining  compliance with the conditions specified in this Section 4.01, 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.  4.02 Conditions to all Credit Extensions.  The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other  than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Term  SOFR Loans) is subject to the following conditions precedent:  (a) Representations and Warranties. The representations and warranties of the  Borrower and each other Loan Party contained in Article II, Article V or any other Loan Document,  or which are contained in any document furnished at any time under or in connection herewith or  therewith, shall (i) with respect to representations and warranties that contain a materiality  qualification, be true and correct on and as of the date of such Credit Extension and (ii) with respect  to representations and warranties that do not contain a materiality qualification, be true and correct  in all material respects on and as of the date of such Credit Extension, and except that for purposes  of this Section 4.02, the representations and warranties contained in Sections 5.05(a) and (b) shall  be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b),  respectively.  (b) Default. No Default or Event of Default shall exist, or would result from such  proposed Credit Extension or from the application of the proceeds thereof.  (c) Request for Credit Extension. The Administrative Agent and, if applicable, the L/C  Issuer or the Swingline Lender shall have received a Request for Credit Extension in accordance  with the requirements hereof.  (d) Alternative Currency. In the case of a Credit Extension to be denominated in an  Alternative Currency, such currency remains an Eligible Currency.  Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans  to the other Type or a continuation of Term SOFR Loans) submitted by the Borrower shall be deemed to  be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied  on and as of the date of the applicable Credit Extension.  ARTICLE V    REPRESENTATIONS AND WARRANTIES  Each Loan Party represents and warrants to the Administrative Agent and the Lenders, as of the  date made or deemed made, that:  





 






80  5.01 Existence, Qualification and Power.  Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and,  as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization,  (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents  and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform  its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed  and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or  operation of properties or the conduct of its business requires such qualification or license; except in each  case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to  have a Material Adverse Effect. The copy of the Organization Documents of each Loan Party provided to  the Administrative Agent pursuant to the terms of this Agreement is a true and correct copy of each such  document, each of which is valid and in full force and effect.  5.02 Authorization; No Contravention.  The execution, delivery and performance by each Loan Party of each Loan Document to which  such Person is or is to be a party have been duly authorized by all necessary corporate or other  organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization  Documents; (b) conflict with or result in any breach or contravention of, or the creation of (or the  requirement to create) any Lien under, or require any payment to be made under (i) any Contractual  Obligation to which such Person is a party or affecting such Person or the properties of such Person or any  of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral  award to which such Person or its property is subject; or (c) violate any Applicable Law in any material  respect.  5.03 Governmental Authorization; Other Consents.  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any  Governmental Authority or any other Person is necessary or required in connection with (a) the execution,  delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan  Document or (b) the exercise by the Administrative Agent or any Lender of its rights or remedies under the  Loan Documents, other than authorizations, approvals, actions, notices and filings which have been duly  obtained.  5.04 Binding Effect.    This Agreement has been, and each other Loan Document, when delivered hereunder, will have  been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and  each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such  Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject  to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights  generally and subject to general principals of equity.  5.05 Financial Statements; No Material Adverse Effect.  (a) Audited Financial Statements. The Audited Financial Statements (i) were prepared  in accordance with GAAP consistently applied throughout the period covered thereby, except as  otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower and its  Subsidiaries as of the date thereof and their results of operations, cash flows and changes in  Shareholders’ Equity for the period covered thereby in accordance with GAAP consistently applied  





 






81  throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show  all material indebtedness and other liabilities, direct or contingent, of the Borrower and its  Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and  Indebtedness.  (b) Quarterly Financial Statements. The unaudited Consolidated balance sheet of the  Borrower and its Subsidiaries dated June 30, 2022, and the related Consolidated statements of  income or operations, Shareholders’ Equity and cash flows for the fiscal quarter ended on that date  (i) were prepared in accordance with GAAP consistently applied throughout the period covered  thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition  of the Borrower and its Subsidiaries as of the date thereof and their results of operations, cash flows  and changes in Shareholders’ Equity for the period covered thereby, subject, in the case of clauses  (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.  (c) Material Adverse Effect. Since the date of the balance sheet included in the  Audited Financial Statements (and, in addition, after delivery of the most recent annual audited  financial statements in accordance with the terms hereof, since the date of such annual audited  financial statements), there has been no event or circumstance, either individually or in the  aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.  (d) Forecasted Financials. The Consolidated forecasted balance sheet, statements of  income and cash flows of the Borrower and its Subsidiaries, prepared on a pro forma basis as of  December 31, 2022 after giving effect to the Transactions, and on an annual basis thereafter,  delivered pursuant to Section 4.01 were prepared in good faith on the basis of the assumptions  stated therein, which assumptions were fair in light of the conditions existing at the time of delivery  of such forecasts, and represented, at the time of delivery, the Borrower’s good faith estimate of its  future financial condition and performance.  5.06 Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the  Loan Parties after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration  or before any Governmental Authority, by or against any Loan Party or any Subsidiary or against any of  their properties, rights or revenues that (a) purport to affect or pertain to this Agreement or any other Loan  Document or any of the transactions contemplated hereby, or (b) either individually or in the aggregate  could reasonably be expected to have a Material Adverse Effect.  5.07 No Default.  Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to, or a party  to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to  have a Material Adverse Effect. No Default has occurred and is continuing or would result from the  consummation of the transactions contemplated by this Agreement or any other Loan Document.  5.08 Ownership of Property.  Each Loan Party and each of its Subsidiaries has good record and marketable title in fee simple to,  or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business,  except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have  a Material Adverse Effect.  





 






82  5.09 Environmental Matters.   (a) Except as could not, individually or in the aggregate, reasonably be expected to  result in any Material Adverse Effect on any of the Loan Parties or any of their respective  subsidiaries:  (i) (A) None of the properties currently or formerly owned, leased or operated  by any Loan Party or any of its Subsidiaries is listed or formally proposed for listing on the  NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any  such property; (B) there are no, and to the best knowledge of the Loan Parties and their  Subsidiaries never have been any underground or above-ground storage tanks or any  surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials  are being or have been treated, stored or disposed on any property currently owned, leased  or operated by any Loan Party or any of its Subsidiaries or, to the best knowledge of the  Loan Parties, on any property formerly owned, leased or operated by any Loan Party or  any of its Subsidiaries; (C) there is no and never has been any asbestos or asbestos- containing material on, at or in any property currently owned, leased or operated by any  Loan Party or any of its Subsidiaries; (D) Hazardous Materials have not been released on,  at, under or from any property currently or formerly owned, leased or operated by any Loan  Party or any of its Subsidiaries or any property by or on behalf, or otherwise arising from  the operations, of any Loan Party or any of its Subsidiaries; and (E) no Loan Party or any  of its Subsidiaries has become subject to any Environmental Liability or knows of any facts  or circumstances that could reasonably be expected to give rise to any Environmental  Liability;  (ii) (A) Neither any Loan Party nor any of its Subsidiaries is undertaking, and  has not completed, either individually or together with other potentially responsible parties,  any investigation or assessment or remedial or response action relating to any actual or  threatened Release of Hazardous Materials at, on, under, or from any site, location or  operation, either voluntarily or pursuant to the order of any Governmental Authority or the  requirements of any Environmental Law; and (B) all Hazardous Materials generated, used,  treated, handled or stored at, or transported to or from, any property currently or formerly  owned, leased or operated by any Loan Party or any of its Subsidiaries have been disposed  of in a manner which could not reasonably expected to result in liability to any Loan Party  or any of its Subsidiaries;  (iii) The Loan Parties and their respective Subsidiaries: (A) are, and within the  period of all applicable statutes of limitation have been, in compliance with all applicable  Environmental Laws; (B) hold all Environmental Permits (each of which is in full force  and effect) required for any of their current or intended operations or for any property  owned, leased, or otherwise operated by any of them; (C) are, and within the period of all  applicable statutes of limitation have been, in compliance with all of their Environmental  Permits; (D) to the extent within the control of the Loan Parties and their respective  Subsidiaries, will timely renew and comply with each of their Environmental Permits and  any additional Environmental permits that may be required of any of them without material  expense, and timely comply with any current, future or potential Environmental Law  without material expense; and (E) are not aware of any requirements proposed for adoption  or implementation under any Environmental Law.  (b) The Loan Parties and their respective Subsidiaries conduct in the ordinary course  of business a review of the effect of existing Environmental Laws and claims alleging potential  





 






83  liability or responsibility for violation of any Environmental Law on their respective businesses,  operations and properties, and as a result thereof the Borrower has reasonably concluded that such  Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.  5.10 Insurance.  The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable  insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering  such risks as deemed appropriate by the Loan Parties in their commercially reasonable business judgment  in light of the businesses operated by the Loan Parties and their Subsidiaries.   5.11 Taxes.  Each Loan Party and its Subsidiaries have filed all federal, state and other material tax returns and  reports required to be filed, and have paid all federal, state and other material taxes, assessments, fees and  other governmental charges levied or imposed upon them or their properties, income or assets otherwise  due and payable, except those which are being contested in good faith by appropriate proceedings diligently  conducted and for which adequate reserves have been provided in accordance with GAAP. There is no  proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material  Adverse Effect, nor is there any tax sharing agreement applicable to the Borrower or any Subsidiary.  5.12 ERISA Compliance.   (a) Each Plan is in compliance in all material respects with the applicable provisions  of ERISA, the Code and other federal or state laws. Each Pension Plan that is intended to be a  qualified plan under Section 401(a) of the Code has received a favorable determination letter or is  subject to a favorable opinion letter from the IRS to the effect that the form of such Plan is qualified  under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to  be exempt from federal income tax under Section 501(a) of the Code, or an application for such a  letter is currently being processed by the IRS. To the best knowledge of the Loan Parties, nothing  has occurred that would prevent or cause the loss of such tax-qualified status.  (b) There are no pending or, to the best knowledge of the Loan Parties, threatened  claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that  could reasonably be expected to have a Material Adverse Effect. There has been no prohibited  transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted  or could reasonably be expected to result in a Material Adverse Effect.  (c) (i) No ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is  aware of any fact, event or circumstance that could reasonably be expected to constitute or result  in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) as of the most  recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in  Section 430(d)(2) of the Code) is 60% or higher and no Loan Party nor any ERISA Affiliate knows  of any facts or circumstances that could reasonably be expected to cause the funding target  attainment percentage for any such plan to drop below 60% as of the most recent valuation date;  (iii) no Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for  the payment of premiums, and there are no premium payments which have become due that are  unpaid; (iv) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could  be subject to Section 4069 or Section 4212(c) of ERISA; and (v) no Pension Plan has been  terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has  





 






84  occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings  under Title IV of ERISA to terminate any Pension Plan.  (d) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has  any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan  other than (i) on the Closing Date, those listed on Schedule 5.12 hereto and (ii) thereafter, Pension  Plans not otherwise prohibited by this Agreement.  (e) The Borrower represents and warrants as of the Closing Date that the Borrower is  not and will not be using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise)  of one or more Benefit Plans with respect to the Borrower’s entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, the Commitments or this  Agreement.   5.13 Margin Regulations; Investment Company Act.  (a) Margin Regulations. Neither the Borrower nor any of its Subsidiaries is engaged  or will engage, principally or as one of its important activities, in the business of purchasing or  carrying margin stock (within the meaning of Regulation U), or extending credit for the purpose of  purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing  or drawing under each Letter of Credit, not more than twenty-five percent (25%) of the value of  the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated  basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction  contained in any agreement or instrument between the Borrower or any of its Subsidiaries and any  Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section  8.01(e) will be margin stock.  (b) Investment Company Act. None of the Borrower, any Person Controlling the  Borrower, or any Subsidiary is or is required to be registered as an “investment company” under  the Investment Company Act of 1940.  5.14 Disclosure.  The Borrower has disclosed to the Administrative Agent and the Lenders all agreements,  instruments and corporate or other restrictions to which it or any of its Subsidiaries or any other Loan Party  is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be  expected to result in a Material Adverse Effect. No report, financial statement, certificate or other  information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative  Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this  Agreement or delivered hereunder or under any other Loan Document (in each case as modified or  supplemented by other information so furnished) contains any material misstatement of fact or omits to  state any material fact necessary to make the statements therein, in the light of the circumstances under  which they were made, not misleading; provided that, with respect to projected financial information, each  Loan Party represents only that such information was prepared in good faith based upon assumptions  believed to be reasonable at the time.  5.15 Compliance with Laws.  Each Loan Party and each Subsidiary thereof is in compliance with the requirements of all  Applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in  such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested  





 






85  in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either  individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.  5.16 Solvency.  Each Loan Party is, individually and together with its Subsidiaries on a Consolidated basis, Solvent.  5.17 Casualty, Etc.  Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries are affected  by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake,  embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that,  either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.  5.18 Sanctions Concerns and Anti-Corruption Laws.  (a) Sanctions Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of  the Loan Parties and their Subsidiaries, any director, officer, employee, agent, affiliate or  representative thereof, is an individual or entity that is, or is owned or controlled by one or more  individuals or entities that are (i) currently the subject or target of any Sanctions, (ii) included on  OFAC’s List of Specially Designated Nationals or HMT’s Consolidated List of Financial Sanctions  Targets, or any similar list enforced by any other relevant sanctions authority or (iii) located,  organized or resident in a Designated Jurisdiction. The Borrower and its Subsidiaries have  conducted their businesses in compliance with all applicable Sanctions and have instituted and  maintained policies and procedures designed to promote and achieve compliance with such  Sanctions.  (b) Anti-Corruption Laws. The Loan Parties and their Subsidiaries have conducted  their business in compliance in all material respects with the United States Foreign Corrupt  Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in  other jurisdictions, and have instituted and maintained policies and procedures designed to promote  and achieve compliance with such laws.  5.19 Responsible Officers.  Set forth on Schedule 1.01(c) are Responsible Officers, holding the offices indicated next to their  respective names, as of the Closing Date and as of the last date such Schedule 1.01(c) was required to be  updated in accordance with Sections 6.02 and 6.13 and such Responsible Officers are the duly elected and  qualified officers of such Loan Party and are duly authorized to execute and deliver, on behalf of the  respective Loan Party, this Agreement, the Notes and the other Loan Documents.  5.20 Subsidiaries; Equity Interests; Loan Parties.  (a) Subsidiaries, Joint Ventures, Partnerships and Equity Investments. Set forth on  Schedule 5.20(a), is the following information which is true and complete in all respects as of the  Closing Date and as of the last date such Schedule was required to be updated in accordance with  Sections 6.02 and 6.13: (i) a complete and accurate list of all Subsidiaries, joint ventures and  partnerships and other equity investments of the Loan Parties as of the Closing Date and as of the  last date such Schedule was required to be updated in accordance with Sections 6.02 and 6.13,  (ii) the number of shares of each class of Equity Interests in each Subsidiary outstanding, (iii) the  number and percentage of outstanding shares of each class of Equity Interests owned by the Loan  





 






86  Parties and their Subsidiaries and (iv) the class or nature of such Equity Interests (i.e., voting, non- voting, preferred, etc.). The outstanding Equity Interests in all Subsidiaries are validly issued, fully  paid and non-assessable and are owned free and clear of all Liens. There are no outstanding  subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock  options granted to employees or directors and directors’ qualifying shares) of any nature relating  to the Equity Interests of any Loan Party or any Subsidiary thereof, except as contemplated in  connection with the Loan Documents.  (b) Loan Parties. Set forth on Schedule 5.20(b) is a complete and accurate list of all  Loan Parties, showing as of the Closing Date, or as of the last date such Schedule was required to  be updated in accordance with Sections 6.02 and 6.13, (as to each Loan Party) (i) the exact legal  name, (ii) any former legal names of such Loan Party in the four (4) months prior to the Closing  Date, (iii) the jurisdiction of its incorporation or organization, as applicable, (iv) the type of  organization, (v) the address of its chief executive office, (vi) the address of its principal place of  business, (vii) its U.S. federal taxpayer identification number or, in the case of any non-U.S. Loan  Party that does not have a U.S. taxpayer identification number, its unique identification number  issued to it by the jurisdiction of its incorporation or organization, (viii) the organization  identification number, (ix) ownership information (e.g., publicly held or if private or partnership,  the owners and partners of each of the Loan Parties) and (x) the industry or nature of business of  such Loan Party.  5.21 Intellectual Property.  The Borrower and each of its Subsidiaries own, or possess the right to use, all of the trademarks,  service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how, franchises, licenses  and other intellectual property rights that are used in and material to the operation of their respective  businesses, without conflict with the rights of any other Person. To the best knowledge of the Borrower,  neither the operation of the business, nor any product, service, process, method, substance, part or other  material now used, or now contemplated to be used, by the Borrower or any of its Subsidiaries infringes,  misappropriates or otherwise violates upon any rights held by any other Person. No claim or litigation  regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which,  either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. To  the best knowledge of the Borrower, there has been no unauthorized use, access, interruption, modification,  corruption or malfunction of any information technology assets or systems (or any information or  transactions stored or contained therein or transmitted thereby) owned or used by the Borrower or any of  its Subsidiaries, which, either individually or in the aggregate, would reasonably be expected to have a  Material Adverse Effect.  5.22 Affected Financial Institutions.   No Loan Party is an Affected Financial Institution.  5.23 Covered Entities.  No Loan Party is a Covered Entity.  





 






87  5.24 Beneficial Ownership Certification.  The information included in the Beneficial Ownership Certification, if applicable, is true and  correct in all respects.  5.25 Labor Matters   Except as set forth on Schedule 5.25, there are no collective bargaining agreements covering the  employees of the Borrower or any of its United States based Subsidiaries as of the Closing Date.  There are  no Multiemployer Plans covering the employees of the Borrower or any of its United States based  Subsidiaries as of the Closing Date and neither the Borrower nor any Subsidiary has suffered any strikes,  walkouts, work stoppages or other material labor difficulty within the last five (5) years preceding the  Closing Date.  ARTICLE VI    AFFIRMATIVE COVENANTS  Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until  the Facility Termination Date, such Loan Party shall, and with respect to Sections 6.04, 6.08 and 6.15, shall  cause each of its Subsidiaries to:  6.01 Financial Statements.   Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the  Administrative Agent and the Required Lenders:  (a) Audited Financial Statements. As soon as available, but in any event within one  hundred twenty (120) days after the end of each fiscal year of the Borrower, a Consolidated balance  sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related  Consolidated statements of income or operations, changes in Shareholders’ Equity and cash flows  for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal  year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by  a report and opinion of an independent certified public accountant of nationally recognized standing  reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in  accordance with generally accepted auditing standards and shall not be subject to any “going  concern” or like qualification or exception or any qualification or exception as to the scope of such  audit.  (b) Quarterly Financial Statements. As soon as available, but in any event within forty- five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the  Borrower, a Consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such  fiscal quarter, and the related Consolidated statements of income or operations, changes in  Shareholders’ Equity and cash flows for such fiscal quarter and for the portion of the Borrower’s  fiscal year then ended, setting forth in each case in comparative form the figures for the  corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the  previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, certified by  the President, Vice President - Controller, or Vice President - Administration who is a Responsible  Officer of the Borrower as fairly presenting the financial condition, results of operations,  Shareholders’ Equity and cash flows of the Borrower and its Subsidiaries, subject only to normal  year-end audit adjustments and the absence of footnotes.  





 






88  As to any information contained in materials furnished pursuant to Section 6.02(e), the Borrower shall not  be separately required to furnish such information under Section 6.01(a) or (b) above, but the foregoing  shall not be in derogation of the obligation of the Borrower to furnish the information and materials  described in Sections 6.01(a) and (b) above at the times specified therein.  6.02 Certificates; Other Information.   Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the  Administrative Agent and the Required Lenders:  (a) Compliance Certificate. Concurrently with the delivery of the financial statements  referred to in Sections 6.01(a) and (b) commencing with the delivery of the financial statements for  the fiscal year ended December 31, 2022, a duly completed Compliance Certificate signed by the  President, Vice President - Controller, or Vice President - Administration which is a Responsible  Officer of the Borrower. Unless the Administrative Agent or a Lender requests executed originals,  delivery of the Compliance Certificate may be by electronic communication including fax or email  and shall be deemed to be an original and authentic counterpart thereof for all purposes.  (b) Updated Schedules. Concurrently with the delivery of the Compliance Certificate  referred to in Section 6.02(a), the following updated Schedules to this Agreement (which may be  attached to the Compliance Certificate) to the extent required to make the representation related to  such Schedule true and correct as of the date of such Compliance Certificate: Schedules 1.01(c),  5.20(a) and 5.20(b).  (c) Changes in Entity Structure. Within ten (10) days prior to any merger,  consolidation, dissolution or other change in entity structure of any Loan Party or any of its  Subsidiaries permitted pursuant to the terms hereof, provide notice of such change in entity  structure to the Administrative Agent, along with such other information as reasonably requested  by the Administrative Agent.  (d) Audit Reports; Management Letters; Recommendations. Promptly after any  request by the Administrative Agent or any Lender, copies of any detailed audit reports,  management letters or recommendations submitted to the board of directors (or the audit committee  of the board of directors) of any Loan Party by independent accountants in connection with the  accounts or books of any Loan Party or any of its Subsidiaries, or any audit of any of them.  (e) Annual Reports; Etc. Promptly after the same are available, copies of each annual  report, proxy or financial statement or other report or communication sent to the stockholders of  the Borrower, and copies of all annual, regular, periodic and special reports and registration  statements which the Borrower may file or be required to file with the SEC under Section 13 or  15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any  case not otherwise required to be delivered to the Administrative Agent pursuant hereto.  (f) Debt Securities Statements and Reports. Promptly after the furnishing thereof,  copies of any statement or report furnished to any holder of debt securities of any Loan Party or of  any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement  and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other  clause of this Section 6.02.  (g) SEC Notices. Promptly, and in any event within five (5) Business Days after  receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other  





 






89  correspondence received from the SEC (or comparable agency in any applicable non-U.S.  jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency  regarding financial or other operational results of any Loan Party or any Subsidiary thereof.  (h) Notices. Not later than five (5) Business Days after receipt thereof by any Loan  Party or any Subsidiary thereof, copies of all notices, requests and other documents (including  amendments, waivers and other modifications) so received under or pursuant to any instrument,  indenture, loan or credit or similar agreement regarding or related to any breach or default by any  party thereto or any other event that could materially impair the value of the interests or the rights  of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request  by the Administrative Agent, such information and reports regarding such instruments, indentures  and loan and credit and similar agreements as the Administrative Agent may reasonably request.  (i) Environmental Notice. Promptly after the assertion or occurrence thereof, notice  of any action or proceeding against or of any noncompliance by any Loan Party or any of its  Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be  expected to have a Material Adverse Effect or (ii) cause any material property to be subject to any  restrictions on ownership, occupancy, use or transferability under any Environmental Law.  (j) Anti-Money-Laundering. Promptly following any request therefor, information  and documentation reasonably requested by the Administrative Agent or any Lender for purposes  of compliance with applicable “know your customer” and anti-money-laundering rules and  regulations, including, without limitation, the Patriot Act.   (k) Beneficial Ownership.  To the extent any Loan Party qualifies as a “legal entity  customer” under the Beneficial Ownership Regulation, an updated Beneficial Ownership  Certification promptly following any change in the information provided in the Beneficial  Ownership Certification delivered to any Lender in relation to such Loan Party that would result in  a change to the list of beneficial owners identified in such certification.  (l) Additional Information. Promptly, such additional information regarding the  business, financial, legal or corporate affairs of any Loan Party or any Subsidiary thereof, or  compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may  from time to time reasonably request.  Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(e) (to the  extent any such documents are included in materials otherwise filed with the SEC) may be delivered  electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which  the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the  Internet at the website address listed on Schedule 1.01(a); or (ii) on which such documents are  posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender  and the Administrative Agent have access (whether a commercial, third-party website or whether  sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies  of such documents to the Administrative Agent or any Lender upon its request to the Borrower to  deliver such paper copies until a written request to cease delivering paper copies is given by the  Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent  and each Lender (by fax transmission or e-mail transmission) of the posting of any such documents  and provide to the Administrative Agent by e-mail electronic versions (i.e., soft copies) of such  documents. The Administrative Agent shall have no obligation to request the delivery of or to  maintain paper copies of the documents referred to above, and in any event shall have no  responsibility to monitor compliance by the Borrower with any such request by a Lender for  





 






90  delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its  copies of such documents.  The Borrower hereby acknowledges that (i) the Administrative Agent and/or an Affiliate thereof  may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or  information provided by or on behalf of the Borrower hereunder (collectively, “Borrower  Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially  similar electronic transmission system (the “Platform”) and (ii) certain of the Lenders (each, a  “Public Lender”) may have personnel who do not wish to receive material non-public information  with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing,  and who may be engaged in investment and other market-related activities with respect to such  Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to  identify that portion of the Borrower Materials that may be distributed to the Public Lenders and  that (A) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which,  at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page  thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have  authorized the Administrative Agent, any Affiliate thereof, the Arrangers, the L/C Issuer and the  Lenders to treat such Borrower Materials as not containing any material non-public information  (although it may be sensitive and proprietary) with respect to the Borrower or its securities for  purposes of United States federal and state securities laws (provided, however, that to the extent  such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07);  (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion  of the Platform designated “Public Side Information;” and (D) the Administrative Agent and any  Affiliate thereof and the Arrangers shall be entitled to treat any Borrower Materials that are not  marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated  “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no  obligation to mark any Borrower Materials “PUBLIC”.  6.03 Notices.  Promptly, but in any event within two (2) Business Days, notify the Administrative Agent and each  Lender:  (a) of the occurrence of any Default;  (b) of any matter that has resulted or could reasonably be expected to result in a  Material Adverse Effect;  (c) of the occurrence of any ERISA Event;  (d) of any material change in accounting policies or financial reporting practices by  any Loan Party or any Subsidiary thereof, including any determination by the Borrower referred to  in Section 2.10(b); and  (e) of any occurrence of any Disposition or Involuntary Disposition of property or  assets for which the Borrower is required to make a mandatory prepayment pursuant to Section  2.05(b)(i).  Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible  Officer of the Borrower setting forth details of the occurrence referred to therein and to the extent  applicable, stating what action the Borrower has taken and proposes to take with respect thereto. Each  





 






91  notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement  and any other Loan Document that have been breached.  6.04 Payment of Obligations.   Pay and discharge as the same shall become due and payable, all its obligations and liabilities,  including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or  assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted  and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary;  (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all  Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any  instrument or agreement evidencing such Indebtedness.  6.05 Preservation of Existence, Etc.  (a) Preserve, renew and maintain in full force and effect its legal existence and good  standing under the Laws of the jurisdiction of its organization except in a transaction permitted by  Section 7.04 or 7.05;  (b) take all reasonable action to maintain all rights, privileges, permits, licenses and  franchises necessary or desirable in the normal conduct of its business, except to the extent that  failure to do so could not reasonably be expected to have a Material Adverse Effect; and  (c) preserve or renew all of its registered patents, trademarks, trade names and service  marks, the non-preservation of which could reasonably be expected to have a Material Adverse  Effect.  6.06 Maintenance of Properties.  (a) Maintain, preserve and protect all of its material properties and equipment  necessary in the operation of its business in good working order and condition, ordinary wear and  tear excepted; and  (b) make all necessary repairs thereto and renewals and replacements thereof except  where the failure to do so could not reasonably be expected to have a Material Adverse Effect.  6.07 Maintenance of Insurance.  Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower,  insurance with respect to its properties and business against loss or damage consistent with past practices,  of such types and in such amounts consistent with past practices and as approved by the Administrative  Agent, which approval shall not be unreasonably denied.  6.08 Compliance with Laws.  Comply with the requirements of all Applicable Laws and all orders, writs, injunctions and decrees  applicable to it or to its business or property, except in such instances in which (a) such requirement of Law  or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently  conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material  Adverse Effect.  





 






92  6.09 Books and Records.  (a) Maintain proper books of record and account, in which full, true and correct entries  in conformity with GAAP consistently applied shall be made of all financial transactions and  matters involving the assets and business of such Loan Party or such Subsidiary, as the case may  be; and  (b) maintain such books of record and account in material conformity with all  applicable requirements of any Governmental Authority having regulatory jurisdiction over such  Loan Party or such Subsidiary, as the case may be.  6.10 Inspection Rights.  Permit representatives and independent contractors of the Administrative Agent and each Lender  to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make  copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors,  officers, and independent public accountants, all at the expense of the Borrower and at such reasonable  times during normal business hours and as often as may be reasonably desired, upon reasonable advance  notice to the Borrower; provided, however, that when an Event of Default exists the Administrative Agent  or any Lender (or any of their respective representatives or independent contractors) may do any of the  foregoing at the expense of the Borrower at any time during normal business hours and without advance  notice. Subject to Applicable Law, including laws regulating the supervision of Lenders, in general, Lenders  shall not communicate to others any trade secrets or proprietary information of the Borrower, except as  may occur in connection with any litigation or other legal proceedings or transfers of rights hereunder.  6.11 Use of Proceeds.   Use the proceeds of the Credit Extensions for general corporate purposes not in contravention of  any Law or of any Loan Document.  6.12 Material Contracts.  Comply in all material respects with all Material Contracts binding on it or affecting its properties  or business.  6.13 Covenant to Guarantee Obligations.   The Loan Parties will cause each of their Domestic Subsidiaries other than Subsidiaries with no  operating assets and that are either dormant or otherwise inactive, whether newly formed, after acquired or  otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or  acquired (or such longer period of time as agreed to by the Administrative Agent in its reasonable  discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement. In connection  therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior  to creating a Subsidiary (or such shorter period of time as agreed to by the Administrative Agent in its  reasonable discretion), or acquiring the Equity Interests of any other Person. In connection with the  foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor  to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b), (c),  (d) and (e) and such other documents or agreements as the Administrative Agent may reasonably request,  including without limitation, updated Schedules 1.01(c), 5.12, 5.20(a) and 5.20(b).  





 






93  6.14 Compliance with Environmental Laws.  Comply, and cause all lessees and other Persons operating or occupying its properties to comply,  in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and  renew all Environmental Permits necessary for its operations and properties; and conduct any investigation,  study, sampling and testing, cleanup, removal, remedial or other action necessary to remove and clean up  all Hazardous Materials from any of its properties, in accordance with all Environmental Laws; provided,  however, that neither the Borrower nor any of its Subsidiaries shall be required to undertake any such  cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in  good faith and by proper proceedings and appropriate reserves are being maintained with respect to such  circumstances in accordance with GAAP.  6.15 Anti-Corruption Laws; Sanctions.   Conduct its business in compliance in all material respects with the United States Foreign Corrupt  Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in other  jurisdictions and with all applicable Sanctions, and maintain policies and procedures designed to promote  and achieve compliance with such laws and Sanctions.  ARTICLE VII    NEGATIVE COVENANTS  Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until  the Facility Termination Date, no Loan Party shall, nor, with respect to Sections 7.14 and 7.15, shall it  permit any Subsidiary to, directly or indirectly:  7.01 Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues,  whether now owned or hereafter acquired, except for the following (the “Permitted Liens”):  (a) Liens pursuant to any Loan Document;  (b) Liens existing on the Closing Date and listed on Schedule 7.01 and any renewals  or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount  secured or benefited thereby is not increased except as contemplated by Section 7.02(b), (iii) the  direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or  extension of the obligations secured or benefited thereby is permitted by Section 7.02(b);  (c) Liens for Taxes not yet due or which are being contested in good faith and by  appropriate proceedings diligently conducted, if adequate reserves with respect thereto are  maintained on the books of the applicable Person in accordance with GAAP;  (d) statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s,  repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for  a period of more than thirty (30) days or which are being contested in good faith and by appropriate  proceedings diligently conducted; provided that adequate reserves with respect thereto are  maintained on the books of the applicable Person;  





 






94  (e) pledges or deposits in the ordinary course of business in connection with workers’  compensation, unemployment insurance and other social security legislation, other than any Lien  imposed by ERISA;  (f) deposits to secure the performance of bids, trade contracts and leases (other than  Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other  obligations of a like nature incurred in the ordinary course of business;  (g) easements, rights-of-way, restrictions and other similar encumbrances affecting  real property which, in the aggregate, are not substantial in amount, and which do not in any case  materially detract from the value of the property subject thereto or materially interfere with the  ordinary conduct of the business of the applicable Person;  (h) Liens securing judgments for the payment of money (or appeal or other surety  bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h),  provided the applicable Loan Party shall in good faith be prosecuting an appeal or proceedings for  review;  (i) Liens securing Indebtedness permitted under Section 7.02(c); provided that  (i) such Liens do not at any time encumber any property other than the property financed by such  Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market  value, whichever is lower, of the property being acquired on the date of acquisition;  (j) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect  to cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or  any of its Subsidiaries with any Lender, in each case in the ordinary course of business in favor of  the bank or banks with which such accounts are maintained, securing solely the customary amounts  owing to such bank with respect to cash management and operating account arrangements;  provided, that in no case shall any such Liens secure (either directly or indirectly) the repayment  of any Indebtedness;  (k) any interest or title of a lessor, licensor or sublessor under any lease, license or  sublease entered into by any Loan Party in the ordinary course of business and covering only the  assets so leased, licensed or subleased;  (l) Liens of a collection bank arising under Section 4–210 of the UCC on items in the  course of collection;  (m) Liens in favor of customs and revenue authorities arising in the ordinary course of  business as a matter of law to secure payment of customs duties;  (n) Liens on property of a Person existing at the time such Person is merged into or  consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the  Borrower; provided that such Liens were not created in contemplation of such merger,  consolidation or Investment and do not extend to any assets other than those of the Person merged  into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such  Subsidiary, and the applicable Indebtedness secured by such Lien is permitted under  Section 7.02(f);   (o) Liens on accounts receivable sold in accordance with the BTFG Receivables  Facility;  





 






95  (p) protective Liens in the form of or relating to consignments of inventory from third- parties to one or more Loan Parties in an aggregate amount at any time not to exceed $10,000,000;  and  (q) other Liens securing Indebtedness outstanding in an aggregate principal amount  not to exceed $40,000,000.  7.02 Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness, except:  (a) Indebtedness under the Loan Documents;  (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any  refinancings, refundings, renewals or extensions thereof; provided that the amount of such  Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension  except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and  expenses reasonably incurred, in connection with such refinancing and by an amount equal to any  existing commitments unutilized thereunder and the direct or any contingent obligor with respect  thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or  extension;  (c) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and  purchase money obligations for fixed or capital assets within the limitations set forth in  Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one  time outstanding shall not exceed $10,000,000;  (d) Unsecured Indebtedness of a Subsidiary of the Borrower owed to the Borrower or  a Subsidiary of the Borrower, which Indebtedness shall (i) be on terms (including subordination  terms) reasonably acceptable to the Administrative Agent and (ii) be otherwise permitted under the  provisions of Section 7.03(d) (“Intercompany Debt”);  (e) Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise  permitted hereunder of the Borrower or any other Guarantor;  (f) Indebtedness of any Person that becomes a Subsidiary of the Borrower after the  date hereof in a transaction permitted hereunder in an aggregate principal amount not to exceed  $10,000,000; provided that such Indebtedness is existing at the time such Person becomes a  Subsidiary of the Borrower and was not incurred solely in contemplation of such Person’s  becoming a Subsidiary of the Borrower;  (g) obligations (contingent or otherwise) existing or arising under any Swap Contract,  provided that (i) such obligations are (or were) entered into by such Person in the ordinary course  of business for the purpose of directly mitigating risks associated with fluctuations in interest rates  or foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating  the non-defaulting party from its obligation to make payments on outstanding transactions to the  defaulting party;   (h) to the extent constituting Indebtedness, the BTFG Receivables Facility; and  





 






96  (i) other Indebtedness in an aggregate principal amount not to exceed $40,000,000 at  any time outstanding; provided that (i) no Default or Event of Default shall have occurred and be  continuing both before and after giving effect to the incurrence of such Indebtedness and (ii) if such  Indebtedness (regardless of whether it is as a co-borrower, a guarantor, surety, etc.) is for the benefit  of a non-Loan Party Subsidiary, such Indebtedness must also comply with Section 7.03(d).  7.03 Investments.  Make or hold any Investments, except:  (a) Investments held by the Borrower and its Subsidiaries in the form of cash or Cash  Equivalents;  (b) advances to officers, directors and employees of the Loan Parties in an aggregate  amount not to exceed $250,000 at any time outstanding, for travel, entertainment, relocation and  analogous ordinary business purposes;  (c) loans to officers, directors and employees pursuant to a stock option or retirement  plan not exceeding $1,000,000, in the aggregate at any time outstanding;  (d) (i) Investments by the Loan Parties in their respective Subsidiaries outstanding on  the date hereof, (ii) additional Investments by the Loan Parties in other Loan Parties, and (iii) so  long as no Default has occurred and is continuing or would result from such Investment, additional  Investments by the Loan Parties in Subsidiaries that are not Loan Parties (A) in an aggregate amount  invested from the date hereof not to exceed $25,000,000, and (B) to the extent such Investment is  being used by such non-Loan Party Subsidiary to finance an Acquisition that would otherwise  qualify as a “Permitted Acquisition” if made by a Loan Party, Investments in an aggregate amount  invested from the date hereof not to exceed $50,000,000;  (e) Investments consisting of extensions of credit in the nature of accounts receivable  or notes receivable arising from the grant of trade credit in the ordinary course of business excluding  any trade advance to any Foreign Subsidiary that is more than one hundred eighty (180) days from  the date of the original invoice evidencing such trade advance, and Investments received in  satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent  reasonably necessary in order to prevent or limit loss;  (f) Guarantees permitted by Section 7.02;  (g) Investments existing on the date hereof (other than those referred to in Section  7.03(d)(i)) and set forth on Schedule 7.03;  (h) Permitted Acquisitions (other than of CFCs and Subsidiaries held directly or  indirectly by a CFC which Investments are covered by Section 7.03(d)(iii));  (i) Investments (including debt obligations) received in connection with the  bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations  of, and other disputes with, customers and suppliers arising in the ordinary course of business; and  (j) other Investments in an aggregate amount at any time outstanding not to exceed  $10,000,000, provided no Default or Event of Default shall have occurred and be continuing both  before and after giving effect to such Investment.  





 






97  7.04 Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one  transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter  acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:  (a) any Loan Party may merge with (i) the Borrower; provided that the Borrower shall  be the continuing or surviving Person, or (ii) any one or more other Loan Parties;  (b) any Loan Party may Dispose of all or substantially all of its assets (upon voluntary  liquidation or otherwise) to the Borrower or to another Loan Party;  (c) in connection with any Permitted Acquisition, any Subsidiary of the Borrower may  merge into or consolidate with any other Person or permit any other Person to merge into or  consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned  Subsidiary of the Borrower and (ii) in the case of any such merger to which any Loan Party (other  than the Borrower) is a party, such Loan Party is the surviving Person; and  (d) so long as no Default has occurred and is continuing or would result therefrom,  each of the Borrower and any of its Subsidiaries may merge into or consolidate with any other  Person or permit any other Person to merge into or consolidate with it; provided, however, that in  each case, immediately after giving effect thereto (i) in the case of any such merger to which the  Borrower is a party, the Borrower is the surviving Person and (ii) in the case of any such merger to  which any Loan Party (other than the Borrower) is a party, such Loan Party is the surviving Person.  7.05 Dispositions.  Make any Disposition or enter into any agreement to make any Disposition, except:  (a) Permitted Transfers;  (b) Dispositions of obsolete or worn out property, whether now owned or hereafter  acquired, in the ordinary course of business;  (c) Dispositions of equipment or real property to the extent that (i) such property is  exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds  of such Disposition are reasonably promptly applied to the purchase price of such replacement  property;  (d) Dispositions permitted by Section 7.04;   (e) Dispositions pursuant to the BTFG Receivables Facility; and   (f) other Dispositions so long as (i) at least 75% of the consideration paid in  connection therewith shall be cash or Cash Equivalents paid contemporaneously with  consummation of the transaction and shall be in an amount not less than the fair market value of  the property disposed of, (ii) such transaction does not involve the sale or other disposition of a  minority Equity Interests in any Subsidiary, (iii) such transaction does not involve a sale or other  disposition of receivables other than receivables owned by or attributable to other property  concurrently being disposed of in a transaction otherwise permitted under this Section 7.05, and  (iv) the aggregate net book value of all of the assets sold or otherwise disposed of by the Loan  





 






98  Parties and their Subsidiaries in all such transactions in any fiscal year of the Borrower shall not  exceed $10,000,000.  7.06 Restricted Payments.  Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent  or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time  of any action described below or would result therefrom:  (a) each Subsidiary may make Restricted Payments to any Person that owns Equity  Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity  Interest in respect of which such Restricted Payment is being made;  (b) the Borrower and each Subsidiary may declare and make dividend payments or  other distributions payable solely in common Equity Interests of such Person; and  (c) the Borrower may make other Restricted Payments in an unlimited amount,  provided that (i) no Default shall have occurred and be continuing, or would result therefrom, and  (ii) the Borrower shall deliver to the Administrative Agent a certificate demonstrating that after  giving pro forma effect to such Restricted Payment, the Borrower is in Pro Forma Compliance for  the most recently ended Measurement Period for which financial statements have been delivered  pursuant to Section 6.01(a) or (b).  Notwithstanding the foregoing, no such certificate shall be  required to be delivered with respect to Restricted Payments which are the Borrower’s regularly  scheduled quarterly dividend.  7.07 Change in Nature of Business.  Engage in any material line of business substantially different from those lines of business  conducted by the Borrower and its Subsidiaries on the date hereof or any business substantially related or  incidental thereto.  7.08 Transactions with Affiliates.  Enter into or permit to exist any transaction or series of transactions with any officer, director or  Affiliate of such Person other than (a) advances of working capital to any Loan Party, (b) transfers of cash  and assets to any Loan Party, (c) intercompany transactions expressly permitted by this Agreement,  (d) normal and reasonable compensation and reimbursement of expenses of officers and directors and  (e) except as otherwise specifically limited in this Agreement, other transactions which are entered into in  the ordinary course of such Person’s business on fair and reasonable terms and conditions substantially as  favorable to such Person as would be obtainable by it in a comparable arm’s length transaction with a  Person other than an officer, director or Affiliate.  7.09 Burdensome Agreements.  Enter into, or permit to exist, any Contractual Obligation (except for this Agreement and the other  Loan Documents) that (a) encumbers or restricts the ability of any such Person to (i) to act as a Loan Party;  (ii) make Restricted Payments to any Loan Party, (iii) pay any Indebtedness or other obligation owed to  any Loan Party, (iv) make loans or advances to any Loan Party, or (v) create any Lien upon any of their  properties or assets, whether now owned or hereafter acquired, except, in the case of clause (a)(v) only, for  any document or instrument governing Indebtedness incurred pursuant to Section 7.02(c); provided that  any such restriction contained therein relates only to the asset or assets constructed or acquired in connection  





 






99  therewith or (b) requires the grant of any Lien on property for any obligation, except in connection with the  BTFG Receivables Facility with respect to receivables sold pursuant thereto.  7.10 Use of Proceeds.  Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately,  incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U) or to  extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness  originally incurred for such purpose.  7.11 Financial Covenants.   (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the  end of any Measurement Period ending as of the end of any fiscal quarter of the Borrower to be  greater than 3.25 to 1.00;  provided, that (i) with respect to any fiscal quarter ending on or after the Closing Date, the Borrower  may, by written notice to the Administrative Agent for distribution to the Lenders (such request to  be made in writing by the Borrower no later than the date on which a certificate is required to be  delivered pursuant to Section 6.02(a) demonstrating the Consolidated Leverage Ratio for the fiscal  quarter during which such Material Acquisition occurred), elect to increase the maximum  Consolidated Leverage Ratio set forth above to 3.75 to 1.00 for a period of four (4) consecutive  fiscal quarters (inclusive of the fiscal quarter in which the Material Acquisition occurred) in  connection with a Permitted Acquisition that is a Material Acquisition occurring during the first of  such four fiscal quarters (each such period, an “Elevated Covenant Period”) and (ii)  notwithstanding the foregoing clause (i), (A) the Borrower may not elect an Elevated Covenant  Period for at least one (1) full fiscal quarter following the end of an Elevated Covenant Period  before a new Elevated Covenant Period is available again pursuant to the preceding clause (i) and  (B) there shall be no more than two (2) Elevated Covenant Periods during the term of this  Agreement.  (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge  Coverage Ratio as of the end of any Measurement Period ending as of the end of any fiscal quarter  of the Borrower to be less than 1.25 to 1.00.  7.12 Amendments of Organization Documents; Fiscal Year; Legal Name, State of  Formation; Form of Entity and Accounting Changes.   (a) Amend any of its Organization Documents;  (b) change its fiscal year;  (c) without providing ten (10) days prior written notice to the Administrative Agent  (or such extended period of time as agreed to by the Administrative Agent), change its name, state  of formation, form of organization or principal place of business; or  (d) make any change in accounting policies or reporting practices, except as required  by GAAP.  





 






100  7.13 Sale and Leaseback Transactions.  Enter into any Sale and Leaseback Transaction.  7.14 Sanctions.  Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend,  contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to  any Person, to fund any activities of or business with any Person, that, at the time of such funding, is the  subject of Sanctions, or in any other manner that will result in a violation by any Person (including any  Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer,  Swingline Lender, or otherwise) of Sanctions.  7.15 Anti-Corruption Laws.  Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension for any  purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act  2010 and other anti-corruption legislation in other jurisdictions.  7.16 Negative Pledge.  Create or suffer to exist any mortgage, pledge, security interest, conditional sale or other title  retention agreement, charge, encumbrance or other Lien (whether such interest is based on common law,  statute, other law or contract) upon any of its property or assets including, but not limited to, Equity Interests  of the Domestic Subsidiaries of the Borrower, now owned or hereafter acquired, except for Permitted Liens,  and without limiting the provisions of Section 7.09, nor shall any Loan Party enter into any other negative  pledge agreements with any other Persons.  ARTICLE VIII    EVENTS OF DEFAULT AND REMEDIES  8.01 Events of Default.   Any of the following shall constitute an event of default (each, an “Event of Default”):  (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as  required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit  any funds as Cash Collateral in respect of L/C Obligations, or (ii) within five (5) days after the  same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder,  or any other amount payable hereunder or under any other Loan Document; or  (b) Specific Covenants. Any Loan Party fails to perform or observe any term, covenant  or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.08, 6.10, 6.11, 6.12, 6.13, Article  VII or Article X; or  (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or  agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its  part to be performed or observed and such failure continues for thirty (30) days; or  





 






101  (d) Representations and Warranties. Any representation, warranty, certification or  statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party  herein, in any other Loan Document, or in any document delivered in connection herewith or  therewith shall be incorrect or misleading in any material respect (except as to any such  representation or warranty that is already qualified by materiality, such representation or warranty  shall be incorrect or misleading in any respect) when made or deemed made; or  (e) Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails to make any  payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or  otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and  Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn  committed or available amounts and including amounts owing to all creditors under any combined  or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or  perform any other agreement or condition relating to any such Indebtedness or Guarantee or  contained in any instrument or agreement evidencing, securing or relating thereto, or any other  event occurs, the effect of which default or other event is to cause, or to permit the holder or holders  of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on  behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice  if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,  defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or  redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become  payable or Cash Collateral in respect thereof to be demanded; or (ii) there occurs under any Swap  Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any  event of default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is  the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so  defined) under such Swap Contract as to which a Loan Party or any Subsidiary thereof is an  Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan  Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or  (f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof institutes  or consents to the institution of any proceeding under any Debtor Relief Law, or makes an  assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver,  trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any  material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator  or similar officer is appointed without the application or consent of such Person and the  appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding  under any Debtor Relief Law relating to any such Person or to all or any material part of its property  is instituted without the consent of such Person and continues undismissed or unstayed for sixty  (60) calendar days, or an order for relief is entered in any such proceeding; or  (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof  becomes unable or admits in writing its inability or fails generally to pay its debts as they become  due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied  against all or any material part of the property of any such Person and is not released, vacated or  fully bonded within thirty (30) days after its issue or levy; or  (h) Judgments. There is entered against any Loan Party or any Subsidiary thereof  (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to  all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by  independent third-party insurance as to which the insurer is rated at least “A” by A.M. Best  Company, has been notified of the potential claim and does not dispute coverage), or (ii) any one  





 






102  or more non-monetary final judgments that have, or could reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement  proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period  of ten (10) consecutive days during which a stay of enforcement of such judgment, by reason of a  pending appeal or otherwise, is not in effect; or  (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or  Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any  Loan Party under Title IV to ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an  aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate  fails to pay when due, after the expiration of any applicable grace period, any installment payment  with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan  in an aggregate amount in excess of the Threshold Amount; or  (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time  after its execution and delivery and for any reason other than as expressly permitted hereunder or  thereunder or satisfaction in full of all Obligations arising under the Loan Documents, ceases to be  in full force and effect; or any Loan Party or any other Person contests in any manner the validity  or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any  or further liability or obligation under any provision of any Loan Document, or purports to revoke,  terminate or rescind any provision of any Loan Document; or it is or becomes unlawful for a Loan  Party to perform any of its obligations under the Loan Documents; or  (k) Change of Control. There occurs any Change of Control.  Without limiting the provisions of Article IX, if a Default shall have occurred under the Loan  Documents, then such Default will continue to exist until it either is cured (to the extent specifically  permitted) in accordance with the Loan Documents or is otherwise expressly waived by Administrative  Agent (with the approval of requisite Appropriate Lenders (in their sole discretion)) as determined in  accordance with Section 11.01; and once an Event of Default occurs under the Loan Documents, then such  Event of Default will continue to exist until it is expressly waived by the requisite Appropriate Lenders or  by the Administrative Agent with the approval of the requisite Appropriate Lenders, as required hereunder  in Section 11.01.  8.02 Remedies upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of,  or may, with the consent of, the Required Lenders, take any or all of the following actions:  (a) declare the Commitment of each Lender to make Loans and any obligation of the  L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and  obligation shall be terminated;  (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued  and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan  Document to be immediately due and payable, without presentment, demand, protest or other notice  of any kind, all of which are hereby expressly waived by the Borrower;  (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount  equal to the Minimum Collateral Amount with respect thereto); and  





 






103  (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies  available to it, the Lenders and the L/C Issuer under the Loan Documents or Applicable Law or  equity;  provided, however, that upon the occurrence of an event described in Section 8.01(f) with respect to the  Borrower, the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make  L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans  and all interest and other amounts as aforesaid shall automatically become due and payable, and the  obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically  become effective, in each case without further act of the Administrative Agent or any Lender.  8.03 Application of Funds.  (a) After the exercise of remedies provided for in Section 8.02 (or after the Loans have  automatically become immediately due and payable and the L/C Obligations have automatically  been required to be Cash Collateralized as set forth in the proviso to Section 8.02) or if at any time  insufficient funds are received by and available to the Administrative Agent to pay fully all  Specified Obligations then due hereunder, any amounts received on account of the Specified  Obligations shall, subject to the provisions of Sections 2.14 and 2.15, be applied by the  Administrative Agent in the following order:  First, to payment of that portion of the Specified Obligations constituting fees, indemnities,  expenses and other amounts (including fees, charges and disbursements of counsel to the  Administrative Agent and amounts payable under Article III) payable to the Administrative Agent  in its capacity as such;  Second, to payment of that portion of the Specified Obligations constituting fees,  indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to  the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the  respective Lenders and the L/C Issuer) arising under the Loan Documents and amounts payable  under Article III, ratably among them in proportion to the respective amounts described in this  Second clause payable to them;  Third, to payment of that portion of the Specified Obligations constituting accrued and  unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Specified  Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in  proportion to the respective amounts described in this Third clause payable to them;  Fourth, to payment of that portion of the Specified Obligations constituting unpaid  principal of the Loans, L/C Borrowings and Specified Obligations then owing under Specified  Hedge Agreements and Specified Cash Management Agreements and to the to the Administrative  Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations  comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash  Collateralized by the Borrower pursuant to Sections 2.03 and 2.14, in each case ratably among the  Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management  Banks in proportion to the respective amounts described in this Fourth clause held by them; and  Last, the balance, if any, after all of the Specified Obligations have been indefeasibly paid  in full, to the Borrower or as otherwise required by Law.  





 






104  (b) Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the  aggregate undrawn amount of Letters of Credit pursuant to the Fourth clause 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 Specified Obligations, if any, in the order set forth above.  Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received  from such Guarantor or its assets, but appropriate adjustments shall be made with respect to  payments from other Loan Parties to preserve the allocation to Specified Obligations otherwise set  forth above in this Section 8.03.  (c) Notwithstanding the foregoing, Specified Obligations arising under Specified  Cash Management Agreements and Specified Hedge Agreements shall be excluded from the  application described above if the Administrative Agent has not received a Specified Party  Designation Notice, together with such supporting documentation as the Administrative Agent may  request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each  Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice  contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged  and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for  itself and its Affiliates as if a “Lender” party hereto.  ARTICLE IX    ADMINISTRATIVE AGENT  9.01 Appointment and Authority.  Each of the Lenders and the L/C Issuer hereby irrevocably appoints, designates and authorizes  Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan  Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such  powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such  actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the  benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other  Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and  agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term)  with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or  express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a  matter of market custom, and is intended to create or reflect only an administrative relationship between  contracting parties.  9.02 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 banking, trust, financial, advisory, underwriting or other business with any Loan Party 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 or to provide notice to or consent of the Lenders with  respect thereto.  





 






105  9.03 Exculpatory Provisions.  (a) The Administrative Agent or the Arrangers, as applicable, shall not have any duties  or obligations except those expressly set forth herein and in the other Loan Documents, and its  duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing,  the Administrative Agent or the Arrangers, as applicable, and its Related Parties:  (i) shall not be subject to any fiduciary or other implied duties, regardless of  whether a Default has occurred and is continuing;  (ii) shall not have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated  hereby or by the other Loan Documents that the Administrative Agent is required to  exercise as directed in writing by the Required Lenders (or such other number or percentage  of the Lenders as shall be expressly provided for herein or in the other Loan Documents),  provided that the Administrative Agent shall not be required to take any action that, in its  opinion or the opinion of its counsel, may expose the Administrative Agent to liability or  that is contrary to any Loan Document or Applicable Law, including for the avoidance of  doubt any action that may be in violation of the automatic stay under any Debtor Relief  Law or that may effect a forfeiture, modification or termination of property of a Defaulting  Lender in violation of any Debtor Relief Law; and  (iii) shall not have any duty or responsibility to disclose, and shall not be liable  for the failure to disclose, to any Lender or the L/C Issuer any credit or other information  concerning the business, prospects, operations, property, financial and other condition or  creditworthiness of any of the Loan Parties or any of their Affiliates that is communicated  to, or in the possession of, the Administrative Agent, Arrangers or any of their Related  Parties in any capacity, except for notices, reports and other documents expressly required  to be furnished to the Lenders by the Administrative Agent herein.  (b) Neither the Administrative Agent nor any of its Related Parties shall be liable for  any action taken or not taken by the Administrative Agent under or in connection with this  Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with  the consent or at the request of the Required Lenders (or such other number or percentage of the  Lenders as shall be necessary), or as the Administrative Agent shall believe in good faith shall be  necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence  of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction  by final and non-appealable judgment. The Administrative Agent shall be deemed not to have  knowledge of any Default unless and until notice describing such Default is given in writing to the  Administrative Agent by the Borrower, a Lender or the L/C Issuer.  (c) Neither the Administrative Agent nor any of its Related Parties have any duty or  obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any  statement, warranty or representation made in or in connection with this Agreement or any other  Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder  or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of  the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence  of any Default, (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 IV or elsewhere herein, other than to confirm receipt of items  expressly required to be delivered to the Administrative Agent.  





 






106  9.04 Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and  shall not incur any liability for relying upon, any notice, request, certificate, communication, 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 be fully  protected in relying and shall not incur any liability for relying thereon. In determining compliance with  any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter  of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the  Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer  unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C  Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent  may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and  other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with  the advice of any such counsel, accountants or experts. For purposes of determining compliance with the  conditions specified in Section 4.01, 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 objections.  9.05 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 IX 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 Facilities 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 non-appealable judgment that the Administrative  Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.  9.06 Resignation of Administrative Agent.  (a) Notice. The Administrative Agent may at any time give notice of its resignation to  the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the  Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,  which shall be a bank with an office in the United States, or an Affiliate of any such bank with an  office in the United States. If no such successor shall have been so appointed by the Required  Lenders and shall have accepted such appointment within thirty (30) days after the retiring  Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the  Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may  (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor  Administrative Agent meeting the qualifications set forth above; provided that in no event shall  any successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been  appointed, such resignation shall become effective in accordance with such notice on the  Resignation Effective Date.  





 






107  (b) Defaulting Lender. If the Person serving as Administrative Agent is a Defaulting  Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent  permitted by Applicable Law, by notice in writing to the Borrower and such Person remove such  Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no  such successor shall have been so appointed by the Required Lenders and shall have accepted such  appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders)  (the “Removal Effective Date”), then such removal shall nonetheless become effective in  accordance with such notice on the Removal Effective Date.  (c) Effect of Resignation or Removal. With effect from the Resignation Effective Date  or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent  shall be discharged from its duties and obligations hereunder and under the other Loan Documents  (except that in the case of any collateral security held by the Administrative Agent on behalf of the  Lenders or the L/C Issuer under any of the Loan Documents, the retiring or removed Administrative  Agent shall continue to hold such collateral security until such time as a successor Administrative  Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the  retiring or removed Administrative Agent, all payments, communications and determinations  provided to be made by, to or through the Administrative Agent shall instead be made by or to each  Lender and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a  successor Administrative Agent as provided for above. Upon the acceptance of a successor’s  appointment as Administrative Agent hereunder, such successor shall succeed to and become  vested with all of the rights, powers, privileges and duties of the retiring (or removed)  Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to  indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of  the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or  removed Administrative Agent shall be discharged from all of its duties and obligations hereunder  or under the other Loan Documents (if not already discharged therefrom as provided above in this  Section 9.06). The fees payable by the Borrower to a successor Administrative Agent shall be the  same as those payable to its predecessor unless otherwise agreed between the Borrower and such  successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder  and under the other Loan Documents, the provisions of this Article XI and Section 11.04 shall  continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents  and their respective Related Parties in respect of any actions taken or omitted to be taken by any of  them (A) while the retiring or removed Administrative Agent was acting as Administrative Agent  and (B) after such resignation or removal for as long as any of them continues to act in any capacity  hereunder or under the other Loan Documents, including, without limitation, (1) acting as collateral  agent or otherwise holding any collateral security on behalf of any of the Specified Parties and (2)  in respect of any actions taken in connection with transferring the agency to any successor  Administrative Agent.  (d) L/C Issuer and Swingline Lender. Any resignation or removal by Bank of America  as Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as L/C  Issuer and Swingline Lender. If Bank of America resigns as the L/C Issuer, it shall retain all the  rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit  outstanding as of the effective date of its resignation as the L/C Issuer and all L/C Obligations with  respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk  participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank of America resigns  as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder  with respect to Swingline Loans made by it and outstanding as of the effective date of such  resignation, including the right to require the Lenders to make Base Rate Loans or fund risk  participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment  





 






108  by the Borrower of a successor L/C Issuer or Swingline Lender hereunder (which successor shall  in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and  become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or  Swingline Lender, as applicable, (ii) the retiring L/C Issuer and Swingline Lender shall be  discharged from all of their respective duties and obligations hereunder or under the other Loan  Documents, and (iii) the successor L/C Issuer shall issue Letters of Credit in substitution for the  Letters of Credit, if any, outstanding at the time of such succession or make other arrangements  satisfactory to Bank of America to effectively assume the obligations of Bank of America with  respect to such Letters of Credit.  9.07 Non-Reliance on Administrative Agent, the Arrangers and the Other Lenders.  Each Lender and the L/C Issuer expressly acknowledges that none of the Administrative Agent nor  any Arranger has made any representation or warranty to it, and that no act by the Administrative Agent or  any Arranger hereafter taken, including any consent to, and acceptance of any assignment or review of the  affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or  warranty by the Administrative Agent or any Arranger to any Lender or the L/C Issuer as to any matter,  including whether the Administrative Agent or any Arranger have disclosed material information in their  (or their Related Parties’) possession.  Each Lender and the L/C Issuer represents to the Administrative  Agent and each Arranger that it has, independently and without reliance upon the Administrative Agent,  any Arranger, any other Lender or any of their Related Parties and based on such documents and  information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation  into, the business, prospects, operations, property, financial and other condition and creditworthiness of the  Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the  transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend  credit to the Borrower hereunder. Each Lender and the L/C Issuer also acknowledges that it will,  independently and without reliance upon the Administrative Agent, any Arranger, any other Lender or any  of their Related Parties and based on such documents and information as it shall from time to time deem  appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action  under or based upon this Agreement, any other Loan Document or any related agreement or any document  furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself  as to the business, prospects, operations, property, financial and other condition and creditworthiness of the  Loan Parties.  Each Lender and the L/C Issuer represents and warrants that (i) the Loan Documents set forth  the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial  loans in the ordinary course and is entering into this Agreement as a Lender or L/C Issuer for the purpose  of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be  applicable to such Lender or L/C Issuer, and not for the purpose of purchasing, acquiring or holding any  other type of financial instrument, and each Lender and the L/C Issuer agrees not to assert a claim in  contravention of the foregoing.  Each Lender and the L/C Issuer represents and warrants that it is  sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other  facilities set forth herein, as may be applicable to such Lender or such L/C Issuer, and either it, or the Person  exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to  provide such other facilities, is experienced in making, acquiring or holding such commercial loans or  providing such other facilities.  9.08 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the titles listed on the cover page hereof  shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents,  except in its capacity, as applicable, as the Administrative Agent, an Arranger a Lender or the L/C Issuer  hereunder.  





 






109  9.09 Administrative Agent May File Proofs of Claim.  (a) 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 Loan or L/C Obligation shall then be due and payable as herein  expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall  have made any demand on the Borrower) shall be entitled and empowered, by intervention in such  proceeding or otherwise:  (i) to file and prove a claim for the whole amount of the principal and interest  owing and unpaid in respect of the Loans, L/C Obligations and all other Specified  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 L/C Issuer and the  Administrative Agent (including any claim for the reasonable compensation, expenses,  disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent  and their respective agents and counsel and all other amounts due the Lenders, the L/C  Issuer and the Administrative Agent under Sections 2.03(h) and (i), 2.09, 2.10(b)  and 11.04) allowed in such judicial proceeding; and  (ii) 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 L/C Issuer to make such  payments to the Administrative Agent and, in the event that the Administrative Agent shall consent  to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the  Administrative Agent any amount due for the reasonable compensation, expenses, disbursements  and advances of the Administrative Agent and its agents and counsel, and any other amounts due  the Administrative Agent under Sections 2.09, 2.10(b) and 11.04.  (b) 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 L/C Issuer any plan of  reorganization, arrangement, adjustment or composition affecting the Specified Obligations or the  rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of  the claim of any Lender or the L/C Issuer or in any such proceeding.  9.10 Guaranty Matters.   (a) Each of the Lenders (including in its capacities as a potential Cash Management  Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize the Administrative  Agent, at its option and in its discretion, to release any Guarantor from its obligations under the  Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the  Loan Documents.  (b) 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 Guaranty pursuant to this Section 9.10. In each case as specified in this  Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the  applicable Loan Party such documents as such Loan Party may reasonably request to release such  Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the  Loan Documents and this Section 9.10.  





 






110  9.11 Specified Cash Management Agreements and Specified Hedge Agreements.  Except as otherwise expressly set forth herein or in any Guaranty, no Cash Management Bank or  Hedge Bank that obtains the benefit of the provisions of Section 8.03 or any Guaranty by virtue of the  provisions hereof shall have any right to notice of any action or to consent to, direct or object to any action  hereunder or under any other Loan Document or otherwise (or to notice of or to consent to any amendment,  waiver or modification of the provisions hereof or of the Guaranty) other than in its capacity as a Lender  and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other  provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the  payment of, or that other satisfactory arrangements have been made with respect to, Specified Obligations  arising under Specified Cash Management Agreements and Specified Hedge Agreements except to the  extent expressly provided herein and unless the Administrative Agent has received a Specified Party  Designation Notice of such Specified Obligations, together with such supporting documentation as the  Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the  case may be. The Administrative Agent shall not be required to verify the payment of, or that other  satisfactory arrangements have been made with respect to, Specified Obligations arising under Specified  Cash Management Agreements and Specified Hedge Agreements in the case of a Facility Termination Date.  9.12 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 not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan  Party, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of Section  3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments, or this Agreement,  (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84– 14 (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95–60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90–1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91–38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE 96– 23 (a class exemption for certain transactions determined by in-house asset managers), is  applicable with respect to such Lender’s entrance into, participation in, administration of  and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84–14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,  the Commitments and this Agreement, (C) the entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, the Commitments  and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of  PTE 84–14 and (D) to the best knowledge of such Lender, the requirements of subsection  (a) of Part I of PTE 84–14 are satisfied with respect to such Lender’s entrance into,  





 






111  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in  writing between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless either (1) clause (i) in the immediately preceding clause (a) is  true with respect to a Lender or (2) a Lender has provided another representation, warranty and  covenant in accordance with clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such Person  ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the  avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the  Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such  Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments and this Agreement (including in connection with the reservation or  exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or  any documents related hereto or thereto).  9.13 Recovery of Erroneous Payments.   Without limitation of any other provision in this Agreement, if at any time the Administrative Agent  makes a payment hereunder in error to any Lender Recipient Party, whether or not in respect of an  Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount,  then in any such event, each Lender Recipient Party receiving a Rescindable Amount severally agrees to  repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender  Recipient Party  in Same Day Funds in the currency so received, with interest thereon, for each day from  and including the date such Rescindable Amount is received by it to but excluding the date of payment to  the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender  Recipient Party irrevocably waives any and all defenses, including any “discharge for value” (under which  a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt  owed by another) or similar defense to its obligation to return any Rescindable Amount.  The  Administrative Agent shall inform each Lender Recipient Party promptly upon determining that any  payment made to such Lender Recipient Party comprised, in whole or in part, a Rescindable Amount.    ARTICLE X    CONTINUING GUARANTY  10.01 Guaranty.   Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary  obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt  payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or  otherwise, and at all times thereafter, of any and all Specified Obligations (for each Guarantor, subject to  the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations  of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor and (b) the  liability of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount  equal to the largest amount that would not render its obligations hereunder subject to avoidance under  





 






112  Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable  state law or other Applicable Law. Without limiting the generality of the foregoing, the Guaranteed  Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may  be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under  any proceeding or case commenced by or against any debtor under any Debtor Relief Laws. The  Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in  evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the  purpose of establishing the amount of the Specified Obligations. This Guaranty shall not be affected by the  genuineness, validity, regularity or enforceability of the Specified Obligations or any instrument or  agreement evidencing any Specified Obligations, or by the existence, validity, enforceability, perfection,  non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Specified  Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them,  under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or  hereafter acquire in any way relating to any or all of the foregoing.  10.02 Rights of Lenders.  Each Guarantor consents and agrees that the Specified Parties may, at any time and from time to  time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof:  (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or  the terms of the Specified Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release,  fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Specified  Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative  Agent, the L/C Issuer and the Lenders in their sole discretion may determine; and (d) release or substitute  one or more of any endorsers or other guarantors of any of the Specified Obligations. Without limiting the  generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which  might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but  for this provision, might operate as a discharge of such Guarantor.  10.03 Certain Waivers.  Each Guarantor waives (a) any defense arising by reason of any disability or other defense of the  Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission  of any Specified Party) of the liability of the Borrower or any other Loan Party; (b) any defense based on  any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower or  any other Loan Party; (c) the benefit of any statute of limitations affecting any Guarantor’s liability  hereunder; (d) any right to proceed against the Borrower or any other Loan Party, proceed against or exhaust  any security for the Specified Obligations, or pursue any other remedy in the power of any Specified Party  whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by any  Specified Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that  may be derived from or afforded by Applicable Law limiting the liability of or exonerating guarantors or  sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for  payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of  dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Specified  Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of  new or additional Specified Obligations.  10.04 Obligations Independent.  The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety,  and are independent of the Specified Obligations and the obligations of any other guarantor, and a separate  





 






113  action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower or any  other person or entity is joined as a party.  10.05 Subrogation.  No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or  similar rights with respect to any payments it makes under this Guaranty until all of the Specified  Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in  full and the Commitments and the Facilities are terminated. If any amounts are paid to a Guarantor in  violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Specified  Parties and shall forthwith be paid to the Specified Parties to reduce the amount of the Specified Obligations,  whether matured or unmatured.  10.06 Termination; Reinstatement.   This Guaranty is a continuing and irrevocable guaranty of all Specified Obligations now or  hereafter existing and shall remain in full force and effect until the Facility Termination Date.  Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the  case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Specified  Parties exercises its right of setoff, in respect of the Specified Obligations and such payment or the proceeds  of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set  aside or required (including pursuant to any settlement entered into by any of the Specified Parties in their  discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under  any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not  occurred and whether or not the Specified Parties are in possession of or have released this Guaranty and  regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor  under this Section 10.06 shall survive termination of this Guaranty.  10.07 Stay of Acceleration.   If acceleration of the time for payment of any of the Specified Obligations is stayed, in connection  with any case commenced by or against a Guarantor or the Borrower under any Debtor Relief Laws, or  otherwise, all such amounts shall nonetheless be payable by each Guarantor, jointly and severally,  immediately upon demand by the Specified Parties.  10.08 Condition of Borrower.  Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate  means of, obtaining from the Borrower and any other guarantor such information concerning the financial  condition, business and operations of the Borrower and any such other guarantor as such Guarantor requires,  and that none of the Specified Parties has any duty, and such Guarantor is not relying on the Specified  Parties at any time, to disclose to it any information relating to the business, operations or financial  condition of the Borrower or any other guarantor (each Guarantor waiving any duty on the part of the  Specified Parties to disclose such information and any defense relating to the failure to provide the same).  10.09 Appointment of Borrower.  Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this  Agreement, the other Loan Documents and all other documents and electronic platforms entered into in  connection herewith and agrees that (a) the Borrower may execute such documents and provide such  authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and  





 






114  each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed  on its behalf, (b) any notice or communication delivered by the Administrative Agent, L/C Issuer or a  Lender to the Borrower shall be deemed delivered to each Loan Party and (c) the Administrative Agent,  L/C Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument  or agreement executed by the Borrower on behalf of each of the Loan Parties.  10.10 Right of Contribution.  The Guarantors agree among themselves that, in connection with payments made hereunder, each  Guarantor shall have contribution rights against the other Guarantors as permitted under Applicable Law.  10.11 Keepwell.   Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty under the Loan  Documents, in each case, by any Specified Loan Party becomes effective with respect to any Swap  Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide  such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be  needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan  Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such  liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and  undertakings under this Article X voidable under Applicable Law relating to fraudulent conveyance or  fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified  ECP Guarantor under this Section 10.11 shall remain in full force and effect until the Specified Obligations  have been indefeasibly paid and performed in full. Each Loan Party intends this Section 10.11 to constitute,  and this Section 10.11 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell,  support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity  Exchange Act.  ARTICLE XI    MISCELLANEOUS  11.01 Amendments, Etc.  (a) Subject to Section 3.03(c) and the last paragraph of this Section 11.01, no  amendment or waiver of any provision of this Agreement or any other Loan Document, and no  consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective  unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent  of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and  acknowledged by the Administrative Agent, and each such waiver or consent shall be effective  only in the specific instance and for the specific purpose for which given; provided, however, that  no such amendment, waiver or consent shall:  (i) waive any condition set forth in Section 4.02 as to any Credit Extension  under a particular Facility without the written consent of the Required Revolving Lenders;  (ii) extend or increase the Commitment of any Lender (or reinstate any  Commitment terminated pursuant to Section 8.02) without the written consent of such  Lender (it being understood and agreed that a waiver of any condition precedent in Section  4.02 or of any Default or a mandatory reduction in Commitments is not considered an  extension or increase in Commitments of any Lender);  





 






115  (iii) postpone any date fixed by this Agreement or any other Loan Document  for any payment (excluding mandatory prepayments) of principal, interest, fees or other  amounts due to the Lenders (or any of them) hereunder or under such other Loan Document  without the written consent of each Lender entitled to such payment;  (iv) reduce the principal of, or the rate of interest specified herein on, any Loan  or L/C Borrowing, or (subject to clause (D) of the second proviso to this Section 11.01)  any fees or other amounts payable hereunder or under any other Loan Document without  the written consent of each Lender entitled to such amount; provided, however, that only  the consent of the Required Lenders shall be necessary (i) to amend the definition of  “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit  Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined  term used therein) even if the effect of such amendment would be to reduce the rate of  interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;  (v) change (i) Section 8.03 or Section 2.13 in a manner that would alter the  pro rata sharing of payments required thereby without the written consent of each Lender,  (ii) the order of application of any reduction in the Commitments or any prepayment of  Loans among the Facilities from the application thereof set forth in the applicable  provisions of Section 2.05(b) or 2.06(b), respectively, in any manner that materially and  adversely affects the Lenders under a Facility without the written consent of the Required  Revolving Lenders, Required Term Lenders or the Required Incremental Term Lenders,  as applicable or (iii) Section 2.12(g) in a manner that would alter the pro rata application  required thereby without the written consent of each Lender directly affected thereby;  (vi) change (i) any provision of this Section 11.01 or the definition of  “Required Lenders” or “Required Class Lenders” or any other provision of any Loan  Document specifying the number or percentage of Lenders required to amend, waive or  otherwise modify any rights hereunder or thereunder or make any determination or grant  any consent hereunder (other than the definitions specified in clause (ii) of this clause  (a)(vi)), without the written consent of each Lender or (ii) the definitions of “Required  Revolving Lenders”, “Required Term Lenders” or “Required Incremental Term Lenders”  as each relates to the related Facility (or the constituent definition therein relating to such  Facility) without the written consent of each Lender under such Facility;  (vii) release all or substantially all of the value of the Guaranty, without the  written consent of each Lender, except to the extent the release of any Subsidiary from the  Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made  by the Administrative Agent acting alone);   (viii) release the Borrower or permit the Borrower to assign or transfer any of  its rights or obligations under this Agreement or the other Loan Documents without the  consent of each Lender;  (ix) impose any greater restriction on the ability of any Lender under a Facility  to assign any of its rights or obligations hereunder without the written consent of the  Required Revolving Lenders, Required Term Lenders or Required Incremental Term  Lenders, as applicable;   (x) directly and materially adversely affect the rights of Lenders holding  Commitments or Loans of one Class differently from the rights of Lenders holding  





 






116  Commitments or Loans of any other Class without the written consent of the applicable  Required Class Lenders; or  (xi) amend Section 1.09 or the definition of “Alternative Currency” without  the written consent of the L/C Issuer;  and provided, further, that (A) no amendment, waiver or consent shall, unless in writing and signed  by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C  Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be  issued by it; (B) no amendment, waiver or consent shall, unless in writing and signed by the  Swingline Lender in addition to the Lenders required above, affect the rights or duties of the  Swingline Lender under this Agreement; (C) no amendment, waiver or consent shall, unless in  writing and signed by the Administrative Agent in addition to the Lenders required above, affect  the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;  and (D) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing  executed only by the parties thereto.   (b) Notwithstanding anything to the contrary herein, (i) no Defaulting Lender shall  have any right to approve or disapprove any amendment, waiver or consent hereunder (and any  amendment, waiver or consent which by its terms requires the consent of all Lenders or each  affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the  consent of the applicable Lenders other than Defaulting Lenders), except that (A) the Commitment  of any Defaulting Lender may not be increased or extended without the consent of such Lender and  (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected  Lender, or all Lenders or each affected Lender under a Facility, that by its terms affects any  Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the  consent of such Defaulting Lender; (ii) each Lender is entitled to vote as such Lender sees fit on  any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the  provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the  unanimous consent provisions set forth herein and (iii) 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.  (c) Notwithstanding anything to the contrary herein, this Agreement may be amended  and restated without the consent of any Lender (but with the consent of the Borrower and the  Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall  no longer be a party to this Agreement (as so amended and restated), the Commitments of such  Lender shall have terminated, such Lender shall have no other commitment or other obligation  hereunder and shall have been paid in full all principal, interest and other amounts owing to it or  accrued for its account under this Agreement.  (d) Notwithstanding any provision herein to the contrary, this Agreement may be  amended with the written consent of the Administrative Agent, the L/C Issuer and the Borrower to  amend the definition of “Alternative Currency” or Section 1.09 solely to add additional currency  options solely to the extent permitted pursuant to Section 1.09.  (e) Notwithstanding any provision herein to the contrary, if the Administrative Agent  and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or  other defect in any provision of this Agreement or any other Loan Document (including the  schedules and exhibits thereto), then the Administrative Agent and the Borrower shall be permitted  to amend, modify or supplement such provision to cure such ambiguity, omission, mistake,  





 






117  typographical error or other defect, and such amendment shall become effective without any further  action or consent of any other party to this Agreement.  11.02 Notices; Effectiveness; Electronic Communications.   (a) Notices Generally. Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in clause (b) below), all  notices and other communications provided for herein shall be in writing and shall be delivered by  hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission  or e-mail transmission as follows, and all notices and other communications expressly permitted  hereunder to be given by telephone shall be made to the applicable telephone number, as follows:  (i) if to the Borrower or any other Loan Party, the Administrative Agent, the  L/C Issuer or the Swingline Lender, to the address, fax number, e-mail address or telephone  number specified for such Person on Schedule 1.01(a); and  (ii) if to any other Lender, to the address, fax number, e-mail address or  telephone number specified in its Administrative Questionnaire (including, as appropriate,  notices delivered solely to the Person designated by a Lender on its Administrative  Questionnaire then in effect for the delivery of notices that may contain material non-public  information relating to the Borrower).  Notices and other communications sent by hand or overnight courier service, or mailed by  certified or registered mail, shall be deemed to have been given when received; notices and other  communications sent by fax transmission shall be deemed to have been given when sent (except  that, if not given during normal business hours for the recipient, shall be deemed to have been given  at the opening of business on the next Business Day for the recipient). Notices and other  communications delivered through electronic communications to the extent provided in clause (b)  below shall be effective as provided in such clause (b).  This Agreement was prepared by:  Chapman and Cutler LLP  201 South College Street, Suite 1600  Charlotte, NC 28244  Attention: René LeBlanc-Allman  Phone: (980) 495-7301  E-mail: rleblanc@chapman.com   (b) Electronic Communications.   (i) Notices and other communications to the Administrative Agent, the  Lenders, the Swingline Lender and the L/C Issuer hereunder may be delivered or furnished  by electronic communication (including e-mail, FPML messaging, and Internet or intranet  websites) pursuant to an electronic communications agreement (or such other procedures  approved by the Administrative Agent in its sole discretion); provided that the foregoing  shall not apply to notices to any Lender, the Swingline Lender or the L/C Issuer pursuant  to Article II if such Lender, the Swingline Lender or the L/C Issuer, as applicable, has  notified the Administrative Agent that it is incapable of receiving notices under such  Article II by electronic communication. The Administrative Agent, the Swingline Lender,  the L/C Issuer or the Borrower may each, in its discretion, agree to accept notices and other  communications to it hereunder by electronic communications pursuant to procedures  





 






118  approved by it, provided that approval of such procedures may be limited to particular  notices or communications.  (ii) Unless the Administrative Agent otherwise prescribes, (A) notices and  other communications sent to an e-mail address shall be deemed received upon the sender’s  receipt of an acknowledgment from the intended recipient (such as by the “return receipt  requested” function, as available, return e-mail or other written acknowledgement) and (B)  notices and other communications posted to an Internet or intranet website shall be deemed  received by the intended recipient 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 address or other written acknowledgement) indicating that such notice or  communication is available and identifying the website address therefor; provided that for  both clauses (A) and (B), if such notice or other communication is not sent during the  normal business hours of the recipient, such notice, email or communication shall be  deemed to have been sent at the opening of business on the next Business Day for the  recipient.  (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS  AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE  ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF  ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT  OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,  IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER  MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its  Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender,  the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind  (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the  Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any  other electronic platform or electronic messaging service, or through the Internet.  (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C  Issuer and the Swingline Lender may change its address, fax number or telephone number or e- mail address for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, fax number or telephone number or e-mail address for  notices and other communications hereunder by notice to the Borrower, the Administrative Agent,  the L/C Issuer and the Swingline Lender. In addition, each Lender agrees to notify the  Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an  effective address, contact name, telephone number, fax number and e-mail address to which notices  and other communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such  Public Lender to at all times have selected the “Private Side Information” or similar designation on  the content declaration screen of the Platform in order to enable such Public Lender or its delegate,  in accordance with such Public Lender’s compliance procedures and Applicable Law, including  United States federal and state securities Laws, to make reference to Borrower Materials that are  not made available through the “Public Side Information” portion of the Platform and that may  contain material non-public information with respect to the Borrower or its securities for purposes  of United States federal or state securities laws.  





 






119  (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative  Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including,  without limitation, telephonic or electronic notices, Loan Notices, Letter of Credit Applications,  Notice of Loan Prepayment and Swingline Loan Notices) purportedly given by or on behalf of any  Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete  or were not preceded or followed by any other form of notice specified herein, or (ii) the terms  thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties  shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of  each of them from all losses, costs, expenses and liabilities resulting from the reliance by such  Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to  and other telephonic communications with the Administrative Agent may be recorded by the  Administrative Agent, and each of the parties hereto hereby consents to such recording.  11.03 No Waiver; Cumulative Remedies; Enforcement.  (a) No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise,  and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or  under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial  exercise of any right, remedy, power or privilege hereunder or under any other Loan Document  preclude any other or further exercise thereof or the exercise of any other right, remedy, power or  privilege. The rights, remedies, powers and privileges herein provided, and provided under each  other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and  privileges provided by law.  (b) Notwithstanding anything to the contrary contained herein or in any other Loan  Document, the authority to enforce rights and remedies hereunder and under the other Loan  Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions  and proceedings at law in connection with such enforcement shall be instituted and maintained  exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the  Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the  Administrative Agent from exercising on its own behalf the rights and remedies that inure to its  benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan  Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies  that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may  be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights  in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from  filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a  proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if  at any time there is no Person acting as Administrative Agent hereunder and under the other Loan  Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the  Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses  (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the  consent of the Required Lenders, enforce any rights and remedies available to it and as authorized  by the Required Lenders.  11.04 Expenses; Indemnity; Damage Waiver.   (a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable out-of-pocket  expenses incurred by the Administrative Agent and its Affiliates (including, but not limited to, (A)  the reasonable fees, charges and disbursements of counsel for the Administrative Agent and its  Affiliates and (B) due diligence expenses) in connection with the syndication of the credit facilities  





 






120  provided for herein, the preparation, negotiation, execution, delivery and administration of this  Agreement and the other Loan Documents or any amendments, modifications or waivers of the  provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall  be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in  connection with the issuance, amendment, extension, reinstatement or renewal of any Letter of  Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the  Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements  of any counsel for the Administrative Agent, any Lender or the L/C Issuer), 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 11.04, or (B) in connection with Loans made or  Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any  workout, restructuring or negotiations in respect of such Loans or Letters of Credit.  (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the  Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each  Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)  against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities  and related expenses (including the fees, charges and disbursements of any counsel for any  Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges  and disbursements for attorneys who may be employees of any Indemnitee, incurred by any  Indemnitee or asserted against any Indemnitee by any Person (including the Borrower 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 (including, without limitation, the Indemnitee’s reliance on any Communication executed  using an Electronic Signature, or in the form of an Electronic Record), the performance by the  parties hereto of their respective obligations hereunder or thereunder or the consummation of the  transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any  sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other  Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or  Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the  L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in  connection with such demand do not strictly comply with the terms of such Letter of Credit),  (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property  owned, leased or operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability  related in any way to a Loan Party 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, IN ALL CASES, WHETHER  OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE  COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE;  provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such  losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent  jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or  willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any  other Loan Party against an Indemnitee for a material breach in bad faith of such Indemnitee’s  obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has  obtained a final and non-appealable judgment in its favor on such claim as determined by a court  of competent jurisdiction.  Without limiting the provisions of Section 3.01(c), this Section 11.04(b)  shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages,  etc. arising from any non-Tax claim.  





 






121  (c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail  to indefeasibly pay any amount required under clauses (a) or (b) of this Section 11.04 to be paid by  it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline Lender or  any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative  Agent (or any such sub-agent), the L/C Issuer, the Swingline Lender or such Related Party, as the  case may be, such Lender’s pro rata share (determined as of the time that the applicable  unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total  Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect  of a claim asserted by such Lender), such payment to be made severally among them based on such  Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed  expense or indemnity payment is sought), provided, that the unreimbursed expense or indemnified  loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted  against the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender  in its capacity as such, or against any Related Party of any of the foregoing acting for the  Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in connection  with such capacity. The obligations of the Lenders under this clause (c) are subject to the provisions  of Section 2.12(d).  (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by  Applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges  that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for  special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising  out of, in connection with, or as a result of, this Agreement, any other Loan Document or any  agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby,  any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in  clause (b) above shall be liable for any damages arising from the use by unintended recipients of  any information or other materials distributed to such unintended recipients by such Indemnitee  through telecommunications, electronic or other information transmission systems in connection  with this Agreement or the other Loan Documents or the transactions contemplated hereby or  thereby.  (e) Payments. All amounts due under this Section 11.04 shall be payable not later than  ten (10) Business Days after demand therefor.  (f) Survival. The agreements in this Section 11.04 and the indemnity provisions of  Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the  Swingline Lender, the replacement of any Lender, the termination of the Aggregate Commitments  and the repayment, satisfaction or discharge of all the other Obligations.  11.05 Payments Set Aside.   To the extent that any payment by or on behalf of the Borrower is made to the Administrative  Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises  its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently  invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any  settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be  repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief  Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended  to be satisfied shall be revived and continued in full force and effect as if such payment had not been made  or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the  Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered  





 






122  from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date  such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The  obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the  payment in full of the Obligations and the termination of this Agreement.  11.06 Successors and Assigns.  (a) Successors and Assigns Generally. The provisions of this Agreement and the other  Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto  and their respective successors and assigns permitted hereby, except neither the Borrower nor any  other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without  the prior written consent of the Administrative Agent and each Lender and no Lender may assign  or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in  accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with  the provisions of Section 11.06(d), or (iii) by way of pledge or assignment of a security interest  subject to the restrictions of Section 11.06(e) (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 Section 11.06(d) and, to the extent  expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C  Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this  Agreement.  (b) Assignments by Lenders. Any Lender may at any time assign to one or more  assignees all or a portion of its rights and obligations under this Agreement and the other Loan  Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes  of this clause (b), participations in L/C Obligations and in Swingline Loans) at the time owing to  it); provided that (in each case with respect to any Facility) any such assignment shall be subject to  the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount of the  assigning Lender’s Commitment under any Facility and/or the Loans at the time  owing to it (in each case with respect to any Facility) or contemporaneous  assignments to related Approved Funds (determined after giving effect to such  assignments) that equal at least the amount specified in clause (b)(i)(B) of this  Section 11.06 in the aggregate or in the case of an assignment to a Lender, an  Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned;  and  (B) in any case not described in clause (b)(i)(A) of this Section 11.06,  the aggregate amount of the Commitment (which for this purpose includes Loans  outstanding thereunder) or, if the Commitment is not then in effect, the principal  outstanding balance of the Loans of the assigning Lender subject to each such  assignment, determined as of the date the Assignment and Assumption with  respect to such assignment is delivered to the Administrative Agent or, if “Trade  Date” is specified in the Assignment and Assumption, as of the Trade Date, shall  not be less than $5,000,000, in the case of any assignment in respect of the  Revolving Facility, or $1,000,000, in the case of any assignment in respect of the  Term Facility, unless each of the Administrative Agent and, so long as no Event  





 






123  of Default has occurred and is continuing, the Borrower otherwise consents (each  such consent not to be unreasonably withheld or delayed).  (ii) Proportionate Amounts. Each partial assignment shall be made as an  assignment of a proportionate part of all the assigning Lender’s rights and obligations under  this Agreement and the other Loan Documents with respect to the Loans and/or the  Commitment assigned, except that this clause (b)(ii) shall not (A) apply to the Swingline  Lender’s rights and obligations in respect of Swingline Loans or (B) prohibit any Lender  from assigning all or a portion of its rights and obligations among separate Facilities on a  non-pro rata basis.  (iii) Required Consents. No consent shall be required for any assignment  except to the extent required by clause (b)(i)(B) of this Section 11.06 and, in addition:  (A) the consent of the Borrower (such consent not to be unreasonably  withheld or delayed) shall be required unless (1) an Event of Default has occurred  and is continuing at the time of such assignment or (2) such assignment is to a  Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower  shall be deemed to have consented to any such assignment unless it shall object  thereto by written notice to the Administrative Agent within five (5) Business Days  after having received written notice (which may be by e-mail or other electronic  communication) thereof;  (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required for assignments in respect of  (1) any unfunded Term Commitment, Incremental Term Commitment or any  Revolving Commitment if such assignment is to a Person that is not a Lender with  a Commitment in respect of the applicable Facility, an Affiliate of such Lender or  an Approved Fund with respect to such Lender or (2) any Term Loan or  Incremental Term Loan to a Person that is not a Lender, an Affiliate of a Lender  or an Approved Fund; and  (C) the consent of the L/C Issuer and the Swingline Lender shall be  required for any assignment in respect of the Revolving Facility.  (iv) Assignment and Assumption. The parties to each assignment shall execute  and deliver to the Administrative Agent an Assignment and Assumption, together with a  processing and recordation fee in the amount of $3,500; provided, however, that the  Administrative Agent may, in its sole discretion, elect to waive such processing and  recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall  deliver to the Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons. No such assignment shall be made  (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any  Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender  hereunder, would constitute any of the foregoing Persons described in this clause (B), or  (C) to a natural Person (or a holding company, investment vehicle or trust for, or owned  and operated by or for the primary benefit of one or more natural Persons).  (vi) Certain Additional Payments. In connection with any assignment of rights  and obligations of any Defaulting Lender hereunder, no such assignment shall be effective  





 






124  unless and until, in addition to the other conditions thereto set forth herein, the parties to  the assignment shall make such additional payments to the Administrative Agent in an  aggregate amount sufficient, upon distribution thereof as appropriate (which may be  outright payment, purchases by the assignee of participations or sub-participations, or other  compensating actions, including funding, with the consent of the Borrower and the  Administrative Agent, the applicable pro rata share of Loans previously requested but not  funded by the Defaulting Lender, to each of which the applicable assignee and assignor  hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed  by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender  hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate) its full  pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in  accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event  that any assignment of rights and obligations of any Defaulting Lender hereunder shall  become effective under Applicable Law without compliance with the provisions of this  clause (b)(vi), then the assignee of such interest shall be deemed to be a Defaulting Lender  for all purposes of this Agreement until such compliance occurs.  (vii) Subject to acceptance and recording thereof by the Administrative Agent  pursuant to Section 11.06(c), from and after the effective date specified in each Assignment  and Assumption, the assignee thereunder shall be a party to this Agreement and, to the  extent of the interest assigned by such Assignment and Assumption, have the rights and  obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,  to the extent of the interest assigned by such Assignment and Assumption, be released from  its obligations under this Agreement (and, in the case of an Assignment and Assumption  covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of  Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior  to the effective date of such assignment); provided, that except to the extent otherwise  expressly agreed by the affected parties, no assignment by a Defaulting Lender will  constitute a waiver or release of any claim of any party hereunder arising from that  Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense)  shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a  Lender of rights or obligations under this Agreement that does not comply with this clause  (b) shall be treated for purposes of this Agreement as a sale by such Lender of a  participation in such rights and obligations in accordance with Section 11.06(d).  (c) Register. The Administrative Agent, acting solely for this purpose as a non- fiduciary agent of the Borrower (and such agency being solely for Tax purposes), shall maintain at  the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or  the equivalent thereof in electronic form) and a register for the recordation of the names and  addresses of the Lenders, and the Commitments of, and principal amounts (and interest amounts)  of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to  time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the  Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is  recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this  Agreement. The Register shall be available for inspection by the Borrower and any Lender (with  respect to such Lender’s interest only), at any reasonable time and from time to time upon  reasonable prior notice.  (d) Participations.   





 






125  (i) 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 one or more natural Persons, a Defaulting Lender 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 Commitment and/or the Loans (including such Lender’s participations  in L/C Obligations and/or Swingline Loans) owing to it); provided that (i) such Lender’s  obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain  solely responsible to the other parties hereto for the performance of such obligations and  (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue  to deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement. For the avoidance of doubt, each Lender shall be  responsible for the indemnity under Section 11.04(c) without regard to the existence of any  participations.  (ii) Any agreement or instrument pursuant to which a Lender sells such a  participation shall provide that such Lender shall retain the sole right to enforce this  Agreement and to approve any amendment, modification or waiver of any provision of this  Agreement; provided that such agreement or instrument may provide that such Lender will  not, without the consent of the Participant, agree to any amendment, waiver or other  modification described in the first proviso to Section 11.01 that affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01,  3.04 and 3.05 (subject to the requirements and limitations therein, including the  requirements under Section 3.01(e) (it being understood that the documentation required  under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the  same extent as if it were a Lender and had acquired its interest by assignment pursuant to  clause (b) of this Section 11.06; provided that such Participant (A) shall be subject to the  provisions of Sections 3.06 and 11.13 as if it were an assignee under clause (b) of this  Section 11.06 and (B) shall not be entitled to receive any greater payment under Sections  3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the  applicable participation would have been entitled to receive, except to the extent such  entitlement to receive a greater payment results from a Change in Law that occurs after the  Participant acquired the applicable participation. Each Lender that sells a participation  agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with  the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits of  Section 11.08 as though it were a Lender; provided that such Participant agrees to be  subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation  shall, acting solely for this purpose as 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 interest amounts) of each Participant’s interest in the Loans or other  obligations under the Loan Documents (the “Participant Register”); provided that no  Lender shall have any obligation to disclose all or any portion of the Participant Register  (including the identity of any Participant or any information relating to a Participant’s  interest in any commitments, loans, letters of credit or its other obligations under any Loan  Document) to any Person except to the extent that such disclosure is necessary to establish  that such commitment, loan, letter of credit or other obligation is in registered form under  Section 5f.103–1(c) of the United States Treasury Regulations. The entries in the  Participant Register shall be conclusive absent manifest error, and such Lender shall treat  each Person whose name is recorded in the Participant Register as the owner of such  





 






126  participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative  Agent) shall have no responsibility for maintaining a Participant Register.  (e) Certain Pledges. Any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Agreement (including under its Note or Notes, if any)  to secure obligations of such Lender, including any pledge or assignment to secure obligations to a  Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from  any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a  party hereto.  (f) Resignation as L/C Issuer or Swingline Lender after Assignment. Notwithstanding  anything to the contrary contained herein, if at any time Bank of America assigns all of its  Revolving Commitment and Revolving Loans pursuant to clause (b) above, Bank of America may,  (i) upon thirty (30) days’ notice to the Administrative Agent, the Borrower and the Lenders, resign  as L/C Issuer and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender.  In the event of any such resignation as L/C Issuer or Swingline Lender, the Borrower shall be  entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender hereunder;  provided, however, that no failure by the Borrower to appoint any such successor shall affect the  resignation of Bank of America as L/C Issuer or Swingline Lender, as the case may be. If Bank of  America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C  Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its  resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require  the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts  pursuant to Section 2.03(c)). If Bank of America resigns as Swingline Lender, it shall retain all the  rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it  and outstanding as of the effective date of such resignation, including the right to require the  Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans  pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swingline  Lender, (A) such successor shall succeed to and become vested with all of the rights, powers,  privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (B) the  successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,  outstanding at the time of such succession or make other arrangements satisfactory to Bank of  America to effectively assume the obligations of Bank of America with respect to such Letters of  Credit.  11.07 Treatment of Certain Information; Confidentiality.   (a) Treatment of Certain Information. Each of the Administrative Agent, the Lenders  and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below),  except that Information may be disclosed (i) to its Affiliates, its auditors and its Related Parties (it  being understood that the Persons to whom such disclosure is made will be informed of the  confidential nature of such Information and instructed to keep such Information confidential), (ii) to  the extent required or requested by any regulatory authority purporting to have jurisdiction over  such Person or its Related Parties (including any self-regulatory authority, such as the National  Association of Insurance Commissioners), (iii) to the extent required by Applicable Laws or  regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in  connection with the exercise of any remedies hereunder or under any other Loan Document or any  action or proceeding relating to this Agreement or any other Loan Document or the enforcement of  rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the  same as those of this Section 11.07, to (A) any assignee of or Participant in, or any prospective  





 






127  assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible  Assignee invited to be a Lender pursuant to Section 2.16(b) or (B) any actual or prospective party  (or its Related Parties) to any swap, derivative or other transaction under which payments are to be  made by reference to the Borrower and its obligations, this Agreement or payments hereunder,  (vii) on a confidential basis to (A) any rating agency in connection with rating the Borrower or its  Subsidiaries or the credit facilities provided hereunder or (B) the provider of any Platform or other  electronic delivery service used by the Administrative Agent, the L/C Issuer and/or the Swingline  Lender to deliver Borrower Materials or notices to the Lenders or (viii) the CUSIP Service Bureau  or any similar agency in connection with the application, issuance, publishing and monitoring of  CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder,  or (ix) with the consent of the Borrower or to the extent such Information (x) becomes publicly  available other than as a result of a breach of this Section 11.07, (xi) becomes available to the  Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a  nonconfidential basis from a source other than the Borrower or (xii) is independently discovered  or developed by a party hereto without utilizing any Information received from the Borrower or  violating the terms of this Section 11.07. For purposes of this Section 11.07, “Information” means  all information received from the Borrower or any Subsidiary relating to the Borrower or any  Subsidiary or any of their respective businesses, other than any such information that is available  to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to  disclosure by the Borrower or any Subsidiary, provided that, in the case of information received  from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at  the time of delivery as confidential. Any Person required to maintain the confidentiality of  Information as provided in this Section 11.07 shall be considered to have complied with its  obligation to do so if such Person has exercised the same degree of care to maintain the  confidentiality of such Information as such Person would accord to its own confidential  information. In addition, the Administrative Agent and the Lenders may disclose the existence of  this Agreement and information about this Agreement to market data collectors, similar service  providers to the lending industry and service providers to the Administrative Agent and the Lenders  in connection with the administration of this Agreement, the other Loan Documents and the  Commitments.  (b) Non-Public Information. Each of the Administrative Agent, the Lenders and the  L/C Issuer acknowledges that (i) the Information may include material non-public information  concerning a Loan Party or a Subsidiary, as the case may be, (ii) it has developed compliance  procedures regarding the use of material non-public information and (iii) it will handle such  material non-public information in accordance with Applicable Law, including United States  federal and state securities Laws.  (c) Press Releases. The Loan Parties and their Affiliates agree that they will not in the  future issue any press releases or other public disclosure using the name of the Administrative  Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan  Documents without the prior written consent of the Administrative Agent, unless (and only to the  extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event  the Loan Parties or such Affiliate will consult with such Person before issuing such press release  or other public disclosure.  (d) Customary Advertising Material. The Loan Parties consent to the publication by  the Administrative Agent or any Lender of customary advertising material relating to the  transactions contemplated hereby using the name, product photographs, logo or trademark of the  Loan Parties.  





 






128  11.08 Right of Setoff.   If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each  of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior  written consent of the Required Lenders, to the fullest extent permitted by Applicable Law to set off and  apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency)  at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C  Issuer or any such Affiliate to or for the credit or the account of 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, the L/C Issuer or such Affiliates, irrespective  of whether or not such Lender, the L/C Issuer or Affiliate shall have made any demand under this  Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party  may be contingent or unmatured, secured or unsecured, or are owed to a branch, office or Affiliate of such  Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on  such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of  setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further  application in accordance with the provisions of Section 2.15 and, pending such payment, shall be  segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the  Administrative Agent, the L/C Issuer and the Lenders, and (b) the Defaulting Lender shall provide promptly  to the Administrative Agent a statement describing in reasonable detail the Specified Obligations owing to  such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C  Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies  (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have  under Applicable Law. Each Lender and the L/C Issuer agrees to notify the Borrower and the  Administrative Agent promptly after any such setoff and application, provided that the failure to give such  notice shall not affect the validity of such setoff and application.  11.09 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or  agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest  permitted by Applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall  receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the  principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining  whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds  the Maximum Rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any  payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary  prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts  the total amount of interest throughout the contemplated term of the Obligations hereunder.  11.10 Integration; Effectiveness.   This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees  payable to the Administrative Agent or the L/C Issuer, constitute the entire contract among the parties  relating to the subject matter hereof and supersede any and all previous agreements and understandings,  oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement  shall become effective when it shall have been executed by the Administrative Agent and when the  Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures  of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties  hereto and their respective successors and assigns.  





 






129  11.11 Survival of Representations and Warranties.   All representations and warranties made hereunder and in any other Loan Document or other  document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the  execution and delivery hereof and thereof. Such representations and warranties have been or will be relied  upon by the Administrative Agent and each Lender, regardless of any investigation made by the  Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent  or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain  unpaid or unsatisfied or any Letter of Credit shall remain outstanding.  11.12 Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or  unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement  and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor  in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions  the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable  provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render  unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this  Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to  Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the  Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be  deemed to be in effect only to the extent not so limited.  11.13 Replacement of Lenders.   (a) If the Borrower is entitled to replace a Lender pursuant to the provisions of  Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other  circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party  hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the  Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance  with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its  interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and  obligations under this Agreement and the related Loan Documents to an Eligible Assignee that  shall assume such obligations (which assignee may be another Lender, if a Lender accepts such  assignment), provided that:  (i) the Borrower shall have paid to the Administrative Agent the assignment  fee (if any) specified in Section 11.06(b);  (ii) such Lender shall have received payment of an amount equal to 100% of  the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued  fees and all other amounts payable to it hereunder and under the other Loan Documents  (including any amounts under Section 3.05) from the assignee (to the extent of such  outstanding principal and accrued interest and fees) or the Borrower (in the case of all other  amounts);  (iii) in the case of any such assignment resulting from a claim for compensation  under Section 3.04 or payments required to be made pursuant to Section 3.01, such  assignment will result in a reduction in such compensation or payments thereafter;  





 






130  (iv) such assignment does not conflict with Applicable Laws; and  (v) in the case of an assignment resulting from a Lender becoming a Non- Consenting Lender, the applicable assignee shall have consented to the applicable  amendment, waiver or consent.  (b) A Lender shall not be required to make any such assignment or delegation if, prior  thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the  Borrower to require such assignment and delegation cease to apply.  (c) Each party hereto agrees that (i) an assignment required pursuant to this Section  11.13 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the  Administrative Agent and the assignee and (ii) the Lender required to make such assignment need  not be a party thereto in order for such assignment to be effective and shall be deemed to have  consented to and be bound by the terms thereof; provided, that, following the effectiveness of any  such assignment, the other parties to such assignment agree to execute and deliver such documents  necessary to evidence such assignment as reasonably requested by the applicable Lender, provided  further that any such documents shall be without recourse to or warranty by the parties thereto.  (d) Notwithstanding anything in this Section 11.13 to the contrary, (A) the Lender that  acts as the L/C Issuer may not be replaced hereunder at any time it has any Letter of Credit  outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing of  a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably  satisfactory to the L/C Issuer or the depositing of Cash Collateral into a Cash Collateral account in  amounts and pursuant to arrangements reasonably satisfactory to the L/C Issuer) have been made  with respect to such outstanding Letter of Credit and (B) the Lender that acts as the Administrative  Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.  11.14 Governing Law; Jurisdiction; Etc.   (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET  FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF  ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING  OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH  THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.  (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER  LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT  COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR  DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT  OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C  ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO  THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS  RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF  THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED  STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO  





 






131  IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH  COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION,  LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW  YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE  LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A  FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE  CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE  JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS  AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT  THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY  OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY  OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.  (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY  IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR  HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING  ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN  DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (b) OF THIS SECTION 11.14.  THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND  UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY  APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE  MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.  (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY  APPLICABLE LAW.  11.15 Waiver of Jury Trial.   EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY  LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED  HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY  OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH  OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE  FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES  HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS  IN THIS SECTION 11.15.  11.16 Subordination.  Each Loan Party (a “Subordinating Loan Party”) hereby subordinates the payment of all  obligations and indebtedness of any other Loan Party owing to it, whether now existing or hereafter arising,  including but not limited to any obligation of any such other Loan Party to the Subordinating Loan Party  





 






132  as subrogee of the Specified Parties or resulting from such Subordinating Loan Party’s performance under  this Guaranty, to the indefeasible payment in full in cash of all Obligations. If the Specified Parties so  request, any such obligation or indebtedness of any such other Loan Party to the Subordinating Loan Party  shall be enforced and performance received by the Subordinating Loan Party as trustee for the Specified  Parties and the proceeds thereof shall be paid over to the Specified Parties on account of the Specified  Obligations, but without reducing or affecting in any manner the liability of the Subordinating Loan Party  under this Agreement. Without limitation of the foregoing, so long as no Default has occurred and is  continuing, the Loan Parties may make and receive payments with respect to Intercompany Debt; provided,  that in the event that any Loan Party receives any payment of any Intercompany Debt at a time when such  payment is prohibited by this Section 11.16, such payment shall be held by such Loan Party, in trust for the  benefit of, and shall be paid forthwith over and delivered, upon written request, to the Administrative Agent.  11.17 No Advisory or Fiduciary Responsibility.   In connection with all aspects of each transaction contemplated hereby (including in connection  with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower  and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that:  (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the  Arranger and the Lenders and their respective Affiliates are arm’s-length commercial transactions between  the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative  Agent, the Arrangers and the Lenders and their respective Affiliates, on the other hand, (ii) each of the  Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to  the extent it has deemed appropriate, and (iii) the Borrower and each other Loan Party is capable of  evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated  hereby and by the other Loan Documents; (b) (i) the Administrative Agent, the Arrangers and each Lender  and each of their respective Affiliates each is and has been acting solely as a principal and, except as  expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor,  agent or fiduciary, for the Borrower, any other Loan Party or any of their respective Affiliates, or any other  Person and (ii) neither the Administrative Agent, any Arranger, nor any Lender nor any of their respective  Affiliates has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with  respect to the transactions contemplated hereby except those obligations expressly set forth herein and in  the other Loan Documents; and (c) the Administrative Agent, the Arrangers and the Lenders and their  respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from  those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative  Agent, any Arranger, nor any Lender nor any of their respective Affiliates has any obligation to disclose  any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the  fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases  any claims that it may have against the Administrative Agent, the Arrangers, the Lenders and their  respective Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection  with any aspect of any transactions contemplated hereby.  11.18 Electronic Execution; Electronic Records; Counterparts. This Agreement, any Loan  Document and any other Communication, including Communications required to be in writing, may be in  the form of an Electronic Record and may be executed using Electronic Signatures.  The Borrower and each  of the Administrative Agent and each Lender Party agrees that any Electronic Signature on or associated  with any Communication shall be valid and binding on such Person to the same extent as a manual, original  signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid  and binding obligation of such Person enforceable against such Person in accordance with the terms thereof  to the same extent as if a manually executed original signature was delivered.   Any Communication may  be executed in as many counterparts as necessary or convenient, including both paper and electronic  counterparts, but all such counterparts are one and the same Communication.  For the avoidance of doubt,  





 






133  the authorization under this paragraph may include, without limitation, use or acceptance of a manually  signed paper Communication which has been converted into electronic form (such as scanned into PDF  format), or an electronically signed Communication converted into another format, for transmission,  delivery and/or retention. The Administrative Agent and each of the Lender Parties may, at its option, create  one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”),  which shall be deemed created in the ordinary course of such Person’s business, and destroy the original  paper document.  All Communications in the form of an Electronic Record, including an Electronic Copy,  shall be considered an original for all purposes, and shall have the same legal effect, validity and  enforceability as a paper record.  Notwithstanding anything contained herein to the contrary, neither the  Administrative Agent, L/C Issuer nor Swingline Lender is under any obligation to accept an Electronic  Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures  approved by it; provided, further, without limiting the foregoing, (a) to the extent the Administrative Agent,  L/C Issuer and/or Swingline Lender has agreed to accept such Electronic Signature, the Administrative  Agent and each of the Lender Parties shall be entitled to rely on any such Electronic Signature purportedly  given by or on behalf of any Loan Party and/or any Lender Party without further verification and (b) upon  the request of the Administrative Agent or any Lender Party, any Electronic Signature shall be promptly  followed by such manually executed counterpart.    Neither the Administrative Agent, L/C Issuer nor Swingline Lender shall be responsible for or have  any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness  of any Loan Document or any other agreement, instrument or document (including, for the avoidance of  doubt, in connection with the Administrative Agent’s, L/C Issuer’s or Swingline Lender’s reliance on any  Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means). The  Administrative Agent, L/C Issuer and Swingline Lender shall be entitled to rely on, and shall incur no  liability under or in respect of this Agreement or any other Loan Document by acting upon, any  Communication (which writing may be a fax, any electronic message, Internet or intranet website posting  or other distribution or signed using an Electronic Signature) or any statement made to it orally or by  telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether or not  such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).    The Borrower and each Lender Party hereby waives (i) any argument, defense or right to contest  the legal effect, validity or enforceability of this Agreement, any other Loan Document based solely on the  lack of paper original copies of this Agreement, such other Loan Document, and (ii) waives any claim  against the Administrative Agent, each Lender Party for any liabilities arising solely from the  Administrative Agent’s and/or any Lender Party’s reliance on or use of Electronic Signatures, including  any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in  connection with the execution, delivery or transmission of any Electronic Signature.  11.19 USA Patriot Act Notice.   Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and not on  behalf of any Lender) hereby notifies the Borrower and the other Loan Parties that pursuant to the  requirements of the USA PATRIOT Act (Title III of Pub. L. 107–56 (signed into law October 26, 2001))  (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower and  each other Loan Party, which information includes the name and address of the Borrower and each other  Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable,  to identify the Borrower and each other Loan Party in accordance with the Patriot Act. The Borrower and  each other Loan Party shall, promptly following a request by the Administrative Agent or any Lender,  provide all such other documentation and information that the Administrative Agent or such Lender  requests in order to comply with its ongoing obligations under applicable “know your customer” and anti- money laundering rules and regulations, including the Patriot Act.  





 






134  11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   Solely to the extent any Lender or L/C Issuer that is an Affected Financial Institution is a party to  this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other  agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any  liability of any Lender or L/C Issuer that is an Affected Financial Institution arising under any Loan  Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion  Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to  be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any  Lender or L/C Issuer that is an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent undertaking, or  a bridge institution that may be issued to it or otherwise conferred on it, and that such shares  or other instruments of ownership will be accepted by it in lieu of any rights with respect  to any such liability under this Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the exercise  of the Write-Down and Conversion Powers of the applicable Resolution Authority.  11.21 Acknowledgement Regarding Any Supported QFCs.   To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any  Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”,  and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the  resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act  and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the  regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported  QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan  Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New  York and/or of the United States or any other state of the United States): 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  





 






135  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.    11.22 Amendment and Restatement; No Novation.  (a) This Agreement constitutes an amendment and restatement of the Existing Credit  Agreement, as amended, effective from and after the Closing Date.  The execution and delivery of  this Agreement shall not constitute a novation of any debt or other obligations owing to the Lenders  or the Administrative Agent under the Existing Credit Agreement or any other Loan Document  based on facts or events occurring or existing prior to the execution and delivery of this Agreement.   On the Closing Date, the credit facilities described in the Existing Credit Agreement, as amended,  shall be amended, supplemented, modified and restated in their entirety by the credit facilities  described herein, and all loans and other obligations of the Borrowers outstanding as of such date  under the Existing Credit Agreement, as amended, to the extent not repaid in accordance with the  terms herein, shall be deemed to be loans and obligations outstanding under the corresponding  facilities described herein, without any further action by any Person, except that the Administrative  Agent shall make such transfers of funds as are necessary in order that the outstanding balance of  such Loans, together with any Loans funded on the Closing Date, reflect the respective  Commitments of the Lenders hereunder.  (b) On the Closing Date, (i) all outstanding loans under the Existing Credit Agreement  (“Existing Loans”) made by any Person that is a “Lender” under the Existing Credit Agreement  which is not a Lender hereunder (each, an “Exiting Lender”) shall be repaid in full and the  commitments and other obligations and rights (except as expressly set forth in the Existing Credit  Agreement) of such Exiting Lender shall be terminated, (ii) all outstanding Existing Loans  constituting Revolving Loans under the Existing Credit Agreement that are not being repaid under  clause (i) above shall be deemed Revolving Loans hereunder in accordance with Section 2.01(b)  and the Administrative Agent shall make such transfers of funds as are necessary in order that the  outstanding balance of such Revolving Loans, together with any Revolving Loans funded on the  Closing Date, are in accordance with the relevant Applicable Percentages of the Lenders hereunder,  (iii) all Outstanding Term Loan Obligations under the Existing Credit Agreement that are not being  repaid under clause (i) above shall be continued and reconstituted as a Term Loan hereunder in  accordance with Section 2.01(a), (iv) there shall have been paid in cash in full all accrued but unpaid  interest on the Existing Loans to the Closing Date, (v) there shall have been paid in cash in full all  accrued but unpaid fees under the Existing Credit Agreement due to the Closing Date and all other  amounts, costs and expenses then owing to any of the Exiting Lenders and/or Bank of America, as  administrative agent under the Existing Credit Agreement, (vi) all outstanding Letters of Credit  under the Existing Credit Agreement shall be Letters of Credit hereunder and (vii) all outstanding  promissory notes issued by the Borrower to the Exiting Lenders under the Existing Credit  Agreement shall be promptly returned to the Administrative Agent which shall forward such notes  to the Borrower for cancellation.  (c) Notwithstanding anything herein to the contrary, each Lender hereby waives any  and all payments that may otherwise be payable under Section 3.05 of the Existing Credit  Agreement in connection with the conversion of Existing Loans into Term SOFR Loans on the  Closing Date.   





 






136  11.23 Time of the Essence.  Time is of the essence of the Loan Documents.  11.24 ENTIRE AGREEMENT.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL  AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE  OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE  PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] 





 






  Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed  as of the date first above written.  BORROWER: ALAMO GROUP INC.  By:  /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial  Officer and Treasurer        





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  GUARANTORS: ALAMO GROUP TEXAS LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   ALAMO GROUP (USA) INC.  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   ALAMO GROUP BRAZIL I INC.  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   ALAMO GROUP BRAZIL II INC.  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   ALAMO GROUP MANAGEMENT INC.  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer     





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  GUARANTORS: BUSH HOG LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer     GRADALL INDUSTRIES LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   HENKE MANUFACTURING LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   HERSCHEL PARTS, INC.  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   HOWARD P. FAIRFIELD, LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer     





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  GUARANTORS: NITE-HAWK SWEEPERS, LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   OLD DOMINION BRUSH COMPANY LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial  Officer and Treasurer     RHINOAG LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   SCHULTE (USA) LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial  Officer and Treasurer   SCHWARZE INDUSTRIES LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer     





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  GUARANTORS: SUPER PRODUCTS LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   TENCO INDUSTRIES, INC.  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   TIGER MOWERS LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   WAUSAU EQUIPMENT COMPANY LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer   MORBARK, LLC  By: /s/ Richard J. Wehrle   Name:  Richard J. Wehrle  Title:  Executive Vice President, Chief Financial Officer and Treasurer        





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.     BANK OF AMERICA, N.A.,  as Administrative Agent  By:   Name:   Title:      





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  LENDERS: BANK OF AMERICA, N.A.,  as a Lender, L/C Issuer and Swingline Lender  By:   Name:   Title:      





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  LENDERS: WELLS FARGO BANK, NATIONAL  ASSOCIATION,  as a Lender  By:   Name:   Title:      





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  LENDERS: PNC BANK, NATIONAL ASSOCIATION  as a Lender  By:   Name:   Title:      





 






Signature Page to   Third Amended and Restated Credit Agreement  Alamo Group Inc.  LENDERS: TD BANK, N.A.,  as a Lender  By:   Name:   Title: