thirdamendedandrestatedc






4889-9733-0207 v.9  Execution Version      Published CUSIP Number: 74587JAG9  THIRD AMENDED AND RESTATED CREDIT AGREEMENT   Dated as of   June 14, 2022  among  PULTEGROUP, INC.,  as Borrower,  BANK OF AMERICA, N.A.,  as Administrative Agent and an L/C Issuer,  and  The Other Lenders Party Hereto,  JPMORGAN CHASE BANK, N.A.,   as Syndication Agent,    CITIBANK, N.A.,  MIZUHO BANK, LTD.  and   TRUIST BANK,  as Co-Documentation Agents,    COMERICA BANK,  PNC BANK, NATIONAL ASSOCIATION,  WELLS FARGO BANK, NATIONAL ASSOCIATION  and  U.S. BANK NATIONAL ASSOCIATION,  as Managing Agents,    BOFA SECURITIES, INC.,   JPMORGAN CHASE BANK, N.A.,   CITIBANK, N.A.,  MIZUHO BANK, LTD.  and  TRUIST SECURITIES, INC.,  as Joint Lead Arrangers and Joint Bookrunners    





 






4889-9733-0207 v.9     ii    TABLE OF CONTENTS  Section Page  Article I. Definitions and Accounting Terms ............................................................................................- 1 -  1.01 Defined Terms ................................................................................................................- 1 -  1.02 Other Interpretive Provisions ........................................................................................- 26 -  1.03 Accounting Terms .........................................................................................................- 27 -  1.04 Rounding .......................................................................................................................- 28 -  1.05 Times of Day ................................................................................................................- 28 -  1.06 Letter of Credit Amounts ..............................................................................................- 28 -  1.07 Interest Rates .................................................................................................................- 28 -  Article II. The Commitments and Credit Extensions ..............................................................................- 28 -  2.01 Loans .............................................................................................................................- 28 -  2.02 Borrowings, Conversions and Continuations of Loans ................................................- 29 -  2.03 Letters of Credit ............................................................................................................- 31 -  2.04 Prepayments ..................................................................................................................- 39 -  2.05 Termination or Reduction of Commitments .................................................................- 40 -  2.06 Repayment of Loans .....................................................................................................- 40 -  2.07 Interest ..........................................................................................................................- 40 -  2.08 Fees ...............................................................................................................................- 41 -  2.09 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.........- 41 -  2.10 Evidence of Debt ..........................................................................................................- 42 -  2.11 Payments Generally; Administrative Agent’s Clawback ..............................................- 42 -  2.12 Sharing of Payments by Lenders ..................................................................................- 44 -  2.13 Increase in Commitments. ............................................................................................- 45 -  2.14 Cash Collateral. .............................................................................................................- 46 -  2.15 Defaulting Lenders .......................................................................................................- 47 -  Article III. Taxes, Yield Protection and Illegality...................................................................................- 49 -  3.01 Taxes .............................................................................................................................- 49 -  3.02 Illegality ........................................................................................................................- 53 -  3.03 Inability to Determine Rates .........................................................................................- 53 -  3.04 Increased Costs .............................................................................................................- 56 -  3.05 Compensation for Losses ..............................................................................................- 57 -  3.06 Mitigation Obligations; Replacement of Lenders .........................................................- 57 -  3.07 Survival .........................................................................................................................- 58 -  Article IV. Conditions Precedent To Credit Extensions .........................................................................- 58 -  4.01 Conditions of Initial Credit Extension ..........................................................................- 58 -  4.02 Conditions to all Credit Extensions ..............................................................................- 60 -  Article V. Representations and Warranties .............................................................................................- 61 -  5.01 Financial Condition .......................................................................................................- 61 -  5.02 No Material Change ......................................................................................................- 61 -  5.03 Organization and Good Standing ..................................................................................- 61 -  5.04 Due Authorization .........................................................................................................- 61 -  5.05 No Conflicts ..................................................................................................................- 61 -  5.06 Consents ........................................................................................................................- 62 -  5.07 Enforceable Obligations ...............................................................................................- 62 -  





 






4889-9733-0207 v.9     iii    5.08 No Default.....................................................................................................................- 62 -  5.09 Liens .............................................................................................................................- 62 -  5.10 Indebtedness..................................................................................................................- 62 -  5.11 Litigation .......................................................................................................................- 62 -  5.12 Taxes .............................................................................................................................- 62 -  5.13 Compliance with Law ...................................................................................................- 62 -  5.14 ERISA ...........................................................................................................................- 62 -  5.15 Subsidiaries ...................................................................................................................- 64 -  5.16 Use of Proceeds ............................................................................................................- 64 -  5.17 Government Regulation ................................................................................................- 64 -  5.18 Environmental Matters .................................................................................................- 64 -  5.19 Intellectual Property ......................................................................................................- 65 -  5.20 Solvency........................................................................................................................- 65 -  5.21 Investments ...................................................................................................................- 65 -  5.22 Disclosure .....................................................................................................................- 65 -  5.23 Licenses, Etc .................................................................................................................- 66 -  5.24 Burdensome Restrictions ..............................................................................................- 66 -  5.25 Labor Contracts and Disputes .......................................................................................- 66 -  5.26 Broker’s Fees ................................................................................................................- 66 -  5.27 OFAC ............................................................................................................................- 66 -  5.28 Anti-Corruption Laws ...................................................................................................- 66 -  5.29 Affected Financial Institution .......................................................................................- 66 -  5.30 Beneficial Ownership Certification ..............................................................................- 66 -  Article VI. Affirmative Covenants..........................................................................................................- 67 -  6.01 Information Covenants .................................................................................................- 67 -  6.02 Financial Covenants ......................................................................................................- 70 -  6.03 Preservation of Existence and Franchises .....................................................................- 71 -  6.04 Books and Records .......................................................................................................- 71 -  6.05 Compliance with Law ...................................................................................................- 71 -  6.06 Payment of Taxes and Other Indebtedness ...................................................................- 71 -  6.07 Insurance .......................................................................................................................- 71 -  6.08 Maintenance of Property ...............................................................................................- 71 -  6.09 Performance of Obligations ..........................................................................................- 71 -  6.10 Use of Proceeds ............................................................................................................- 72 -  6.11 Audits/Inspections ........................................................................................................- 72 -  6.12 Additional Credit Parties ..............................................................................................- 72 -  6.13 Anti-Corruption Laws ...................................................................................................- 72 -  6.14 Stock Exchange Listing ................................................................................................- 72 -  6.15 Keepwell .......................................................................................................................- 72 -  Article VII. Negative Covenants .............................................................................................................- 72 -  7.01 Indebtedness..................................................................................................................- 72 -  7.02 Liens .............................................................................................................................- 73 -  7.03 Nature of Business ........................................................................................................- 73 -  7.04 Consolidation and Merger.............................................................................................- 73 -  7.05 Sale or Lease of Assets .................................................................................................- 74 -  7.06 Advances, Investments and Loans ................................................................................- 74 -  7.07 Transactions with Affiliates ..........................................................................................- 74 -  7.08 Organizational Documents............................................................................................- 74 -  7.09 Sale Leaseback Transactions ........................................................................................- 74 -  





 






4889-9733-0207 v.9     iv    7.10 Other Indebtedness .......................................................................................................- 74 -  7.11 Borrowing Base Limitations .........................................................................................- 74 -  7.12 Sanctions .......................................................................................................................- 75 -  7.13 ERISA ...........................................................................................................................- 75 -  7.14 Anti-Corruption Laws ...................................................................................................- 75 -  Article VIII. Events of Default and Remedies ........................................................................................- 75 -  8.01 Events of Default ..........................................................................................................- 75 -  8.02 Remedies Upon Event of Default .................................................................................- 77 -  8.03 Application of Funds ....................................................................................................- 78 -  Article IX. Administrative Agent............................................................................................................- 79 -  9.01 Appointment and Authority ..........................................................................................- 79 -  9.02 Rights as a Lender .........................................................................................................- 79 -  9.03 Exculpatory Provisions .................................................................................................- 79 -  9.04 Reliance by Administrative Agent ................................................................................- 80 -  9.05 Delegation of Duties .....................................................................................................- 80 -  9.06 Resignation of Administrative Agent ...........................................................................- 81 -  9.07 Non-Reliance on Administrative Agent and Other Lenders .........................................- 82 -  9.08 No Other Duties, Etc .....................................................................................................- 82 -  9.09 Administrative Agent May File Proofs of Claim ..........................................................- 82 -  9.10 Recovery of Erroneous Payments .................................................................................- 83 -  Article X. Miscellaneous ........................................................................................................................- 83 -  10.01 Amendments, Etc ..........................................................................................................- 83 -  10.02 Notices; Effectiveness; Electronic Communication .....................................................- 85 -  10.03 No Waiver; Cumulative Remedies; Enforcement .........................................................- 87 -  10.04 Expenses; Indemnity; Damage Waiver .........................................................................- 87 -  10.05 Payments Set Aside ......................................................................................................- 89 -  10.06 Successors and Assigns ................................................................................................- 90 -  10.07 Treatment of Certain Information; Confidentiality .......................................................- 94 -  10.08 Right of Setoff ..............................................................................................................- 95 -  10.09 Interest Rate Limitation ................................................................................................- 95 -  10.10 Counterparts; Integration; Effectiveness .......................................................................- 96 -  10.11 Survival of Representations and Warranties .................................................................- 96 -  10.12 Severability ...................................................................................................................- 96 -  10.13 Replacement of Lenders ...............................................................................................- 96 -  10.14 Governing Law; Jurisdiction; Etc .................................................................................- 97 -  10.15 Waiver of Jury Trial ......................................................................................................- 98 -  10.16 No Advisory or Fiduciary Responsibility .....................................................................- 98 -  10.17 Electronic Execution of Assignments and Certain Other Documents ..........................- 99 -  10.18 USA PATRIOT Act .................................................................................................... - 100 -  10.19 Time of the Essence .................................................................................................... - 100 -  10.20 ERISA ......................................................................................................................... - 100 -  10.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions ........... - 102 -  10.22 Acknowledgement Regarding Any Supported QFCs ................................................. - 102 -  10.23 Amendment and Restatement of Existing Credit Agreement ..................................... - 103 -  10.24 ENTIRE AGREEMENT ............................................................................................. - 103 -    





 






4889-9733-0207 v.9     v    SCHEDULES  1.01 Existing Letters of Credit  2.01A Commitments and Applicable Percentages  2.01B Letter of Credit Commitments  5.09 Existing Liens  5.10 Existing Indebtedness  5.11 Litigation  5.15 Subsidiaries  5.21 Investments  5.25 Labor Contracts and Disputes   10.02 Administrative Agent’s Office; Certain Addresses for Notices    EXHIBITS  Form of  A Loan Notice  B Note  C Compliance Certificate  D-1 Assignment and Assumption  D-2 Administrative Questionnaire   E Third Amended and Restated Guaranty  F Forms of U.S. Tax Compliance Certificates  





 






4889-9733-0207 v.9     - 1 -    THIRD AMENDED AND RESTATED CREDIT AGREEMENT  This THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is  entered into as of June 14, 2022, among PULTEGROUP, INC., a Michigan corporation (“Borrower”),  each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and  BANK OF AMERICA, N.A., as Administrative Agent and an L/C Issuer.  Borrower, Bank of America, as Administrative Agent, a Swing Line Lender and an L/C Issuer,  certain L/C Issuers, certain Swing Line Lenders and certain other Lenders are parties to that certain  Second Amended and Restated Credit Agreement dated as of June 22, 2018 (as modified and amended  prior to the date hereof, the “Existing Credit Agreement”).  The parties hereto desire to amend and restate the Existing Credit Agreement in its entirety.  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, by any Person, the acquisition by such Person of the Equity Interests or all  or substantially all of the assets of another Person, whether or not involving a merger or consolidation  with such Person.  “Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,  2001)).  “Additional Credit Party” means each Person that becomes a Guarantor after the Closing Date, as  provided in Section 6.12 or otherwise.  “Administrative Agent” means Bank of America in its capacity as administrative agent under any  of the Credit Documents, or any successor administrative agent.  “Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 10.02, or such other address or account as Administrative Agent may  from time to time notify to Borrower and the Lenders.  “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form  of Exhibit D-2 or any other form approved by 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” has the meaning specified in the introductory paragraph hereto.  





 






4889-9733-0207 v.9     - 2 -    “Applicable Percentage” means with respect to any Lender at any time, the percentage (carried  out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s  Commitment at such time, subject to adjustment as provided in Section 2.15. If the commitment of each  Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been  terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable  Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most  recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each  Lender is set forth opposite the name of such Lender on Schedule 2.01A or in the Assignment and  Assumption pursuant to which such Lender becomes a party hereto, as applicable.  “Applicable Rate” means, from time to time, the following percentages per annum, based upon  the Debt to Capitalization Ratio as set forth below if Borrower does not have an Investment Grade Rating  from both S&P and Moody’s:  Level  Debt to  Capitalization  Ratio  Base Rate  Applicable  Rate  SOFR  Applicable  Rate and  Letter of  Credit Fees  Applicable  Rate for  Unused Fees  1 < 25% 0.100% 1.100% 0.125%  2 > 25% - < 35% 0.200% 1.200% 0.150%  3 > 35% - < 45% 0.350% 1.350% 0.175%  4 > 45% - < 55% 0.500% 1.500% 0.200%  5 > 55% 0.750% 1.750% 0.250%    Any increase or decrease in the Applicable Rate resulting from a change in the Debt to Capitalization  Ratio shall become effective as of the first Business Day immediately following the date a Compliance  Certificate is delivered pursuant to Section 6.01(c); provided, however, that if a Compliance Certificate is  not delivered when due in accordance with such Section, then, upon the request of the Required Lenders,  Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was  required to have been delivered and shall remain in effect until the date on which such Compliance  Certificate is delivered. The Applicable Rate in effect from the Closing Date until adjusted as set forth  herein shall be determined based upon Level 1.  If Borrower has an Investment Grade Rating from both S&P and Moody’s, then the Applicable Rate shall  the lesser of (a) the applicable Level determined as set forth above based upon the Debt to Capitalization  Ratio and (b) Level 2.  Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable  Rate for any period shall be subject to the provisions of Section 2.09(b).  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Arrangers” means, collectively, BofA Securities, Inc., JPMorgan Chase Bank, N.A., Citibank,  N.A., Mizuho Bank, Ltd. and Truist Securities, Inc., each in their capacity as a joint lead arranger and a  joint bookrunner.  





 






4889-9733-0207 v.9     - 3 -    “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 10.06(b)),  and accepted by Administrative Agent, in substantially the form of Exhibit D-1 or any other form  (including electronic documentation generated by use of an electronic platform) approved by  Administrative Agent.  “Audited Financial Statements” means the audited consolidated balance sheet of 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 Borrower and its  Subsidiaries, including the notes thereto.  “Availability Period” means the period from and including the Closing Date to the earliest of  (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to  Section 2.05, and (c) the date of termination of the commitment of each Lender to make Loans and of the  obligation of each 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 per annum equal to the highest of (a) the  Federal Funds Rate plus one-half of one percent (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,” (c) Term SOFR plus one  percent (1.0%), and (d) one percent (1.0%). 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.  “Base Rate Loan” means a Loan that bears interest based on the Base Rate.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in 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”.  





 






4889-9733-0207 v.9     - 4 -    “Borrower” has the meaning specified in the introductory paragraph hereto.  “Borrower Materials” has the meaning specified in Section 6.01.  “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the  case of Term SOFR Rate Loans, having the same Interest Period.  “Borrowing Base” means, from time to time, the sum of the following amounts (without  duplication), all as reflected from time to time in accordance with GAAP consistently applied in the  consolidated balance sheet of Borrower:  (a) one hundred percent (100%) of the Credit Parties’ Unrestricted Cash in excess of  $25,000,000;  (b) ninety percent (90%) of the Net Housing Unit Proceeds due to any Credit Party at  closing as a result of the consummation of the sale of any Housing Unit, which Net Housing Unit  Proceeds have been paid to the closing agent handling such sale but which have not yet been  received by such Credit Party; provided, however, that if, and to the extent that, such Net Housing  Unit Proceeds which are reported as outstanding on the last day of any fiscal quarter of Borrower  are not received by such Credit Party on or before the tenth (10th) day following the end of any  such fiscal quarter, such Net Housing Unit Proceeds shall not be included in the Borrowing Base;  (c) ninety percent (90%) of the Net Book Value of all Housing Units Under  Contract;  (d) eighty-five percent (85%) of the Net Book Value of all Housing Units (including  model Housing Units) that are not Housing Units Under Contract;  (e) seventy percent (70%) of the Net Book Value of all Finished Lots;  (f) fifty-five percent (55%) of the Net Book Value of all Land Under Development;  and  (g) forty percent (40%) of the Net Book Value of all Land Held for Future  Development/Disposition;   provided that notwithstanding anything to the contrary provided herein, any asset which is  encumbered by a Lien (other than a Lien described in clauses (a), (b), (c), (g) or (m) of the definition of  “Permitted Liens”) shall not be included in the calculation of the Borrowing Base pursuant to clauses (a)  through (g) above.  “Borrowing Base Debt” means all Indebtedness of the Credit Parties including the Obligations,  but excluding (a) any Qualified Subordinated Debt and (b) any Non-Recourse Land Financing secured  solely by Real Estate that is owned by any Credit Party and that, if the same did not secure such  Indebtedness, would be included in the determination of the Borrowing Base.  “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 of New York and the  state where Administrative Agent’s Office is located.  “Businesses” has the meaning specified in Section 5.18.  





 






4889-9733-0207 v.9     - 5 -    “Capital Expenditures” means all expenditures of the Credit Parties and their Subsidiaries which, in  accordance with GAAP, would be classified as capital expenditures, including Capital Leases.  “Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal  or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a  capital lease on the balance sheet of that Person and the amount of such obligation shall be the capitalized  amount thereof determined in accordance with GAAP.  “Capitalization” means, as of any date of determination, the sum of (a) all Indebtedness of the  Credit Parties less (i) fifty percent (50%) of Qualified Subordinated Debt, (ii) all Unrestricted Cash in  excess of $25,000,000, and (iii) Non-Recourse Land Financings not to exceed $300,000,000 in the  aggregate, plus (b) the consolidated net Shareholders’ Equity of Borrower as determined in accordance  with GAAP.   “Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent, for  the benefit of one or more of the L/C Issuers or the Lenders, as collateral for L/C Obligations or  obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account  balances, in each case pursuant to documentation in form and substance reasonably satisfactory to  Administrative Agent and such L/C Issuer. “Cash Collateral” shall have a meaning correlative to the  foregoing and shall include the proceeds of such cash collateral and other credit support.  “Cash Equivalents” means (a) securities issued or directly and fully guaranteed or insured by the  United States of America or any agency or instrumentality thereof (provided that the full faith and credit  of the United States of America is pledged in support thereof) having maturities of not more than 180  days from the date of acquisition, (b) Dollar denominated time and demand deposits and certificates of  deposit of (i) any Lender, (ii) any domestic commercial bank having capital and surplus in excess of  $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-2 or the  equivalent thereof or from Moody’s is at least P-2 or the equivalent thereof (any such bank being an  “Approved Bank”), in each case with maturities of not more than 180 days from the date of acquisition,  (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent  company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated  A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s  and maturing within 180 days of the date of acquisition, (d) repurchase agreements with a bank or trust  company (including any of the Lenders) or recognized securities dealer having capital and surplus in  excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of  America in which Borrower shall have a perfected first priority security interest (subject to no other  Liens) and having, on the date of purchase thereof, a fair market value of at least one hundred percent  (100%) of the amount of the repurchase obligations, (e) Investments, classified in accordance with GAAP  as current assets, in money market investment programs registered under the Investment Company Act of  1940, which are administered by reputable financial institutions having capital of at least $500,000,000  and the portfolios of which are limited to Investments of the character described in the foregoing  clauses (a) through (d), and (f) Investments consistent with the PulteGroup, Inc. Cash Investment Policy  as set forth on Schedule 5.21.  “Change in Law” means the occurrence, after the date of this Agreement, or with respect to any  Lender, such later date on which such Lender becomes a party to this Agreement, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,  regulation or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive  (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding  anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and  





 






4889-9733-0207 v.9     - 6 -    all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all  requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel  Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign  regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law,” regardless of the date enacted, adopted or issued.  “Change of Control” means an event or series of events by which:  (a) 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,  so long as such right is exercisable immediately or within sixty (60) days of the applicable date of  determination (such right, an “option right”)), directly or indirectly, of thirty percent (30%) or  more of the equity securities of Borrower entitled to vote for members of the board of directors or  equivalent governing body of 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);  (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 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  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 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 passage of thirty (30) days from the date upon which any Person or two or  more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered  into a contract or arrangement that, upon consummation thereof, will result in its or their  acquisition of the power to exercise, directly or indirectly, a controlling influence over the  management or policies of Borrower, or control over the equity securities of Borrower entitled to  vote for members of the board of directors or equivalent governing body of 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) representing thirty percent (30%) or more of the combined  voting power of such securities.  “Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or  waived in accordance with Section 10.01.  “CME” means CME Group Benchmark Administration Limited.  “Code” means the Internal Revenue Code of 1986, as amended.  “Commitment” means, as to each Lender, its obligation to (a) make Loans to Borrower pursuant  to Section 2.01 and (b) purchase participations in L/C Obligations, in an aggregate principal amount at  any one time outstanding not to exceed the amount set forth opposite such Lender’s name on  Schedule 2.01A or in the Assignment and Assumption pursuant to which such Lender becomes a party  





 






4889-9733-0207 v.9     - 7 -    hereto, as applicable, as such amount may be adjusted from time to time in accordance with this  Agreement.  “Compliance Certificate” means a certificate substantially in the form of Exhibit C.  “Communication” has the meaning specified in Section 10.17(b).  “Conforming Changes” means, with respect to the use, administration of or any conventions  associated with SOFR or any proposed Successor Rate, Daily Simple SOFR, or Term SOFR, as  applicable, any conforming changes to the definitions of “Base Rate”, “Daily Simple SOFR”, “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 reasonable discretion of Administrative Agent in consultation with Borrower, to reflect  the adoption and implementation of such applicable rate(s) and to permit the administration thereof by  Administrative Agent in a manner substantially consistent with market practice (or, if Administrative  Agent reasonably 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 Administrative Agent determines is reasonably necessary in connection with the  administration of this Agreement and any other Credit 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 Net Tangible Assets” means, as of any date of determination, the sum of  (a) Tangible Net Worth and (b) Indebtedness of the Credit Parties.  “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.  “Covered Entity” has the meaning specified in Section 10.22(b).  “Credit Documents” means this Agreement, each Note, each Issuer Document, any agreement  creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14 of this  Agreement, the Fee Letters, and the Guaranty.  “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit  Extension.  “Credit Parties” means, collectively, Borrower and each Guarantor, and “Credit Party” means  any one of the Credit Parties.  “Daily Simple SOFR” means, with respect to any applicable determination date, (a) SOFR  published on the fifth (5th) U.S. Government Securities Business Day preceding such day by the SOFR  Administrator on the Federal Reserve Bank of New York’s website (or any successor source); provided,  however, that if such day is not a U.S. Government Securities Business Day, then Daily Simple SOFR  means such rate so published on the fifth (5th) U.S. Government Securities Business Day preceding the  first (1st) U.S. Government Securities Business Day immediately prior thereto; plus (b) the SOFR  





 






4889-9733-0207 v.9     - 8 -    Adjustment. If the rate as so determined would be less than zero percent (0.0%), such rate shall be  deemed to be zero percent (0.0%) for purposes of the Loans and Credit Documents.  “Daily SOFR Rate Loan” means a Loan made hereunder with respect to which the interest rate is  calculated by reference to Daily Simple SOFR.  “Debt to Capitalization Ratio” means, as of any date, the ratio (stated as a percentage) of  (a) Indebtedness of the Credit Parties less (i) fifty percent (50%) of Qualified Subordinated Debt, (ii) all  Unrestricted Cash in excess of $25,000,000, and (iii) Non-Recourse Land Financings not to exceed  $300,000,000 in the aggregate, to (b) Capitalization.   “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other  applicable jurisdictions from time to time in effect.  “Default” means any event or condition that constitutes an Event of Default or that, with the  giving of any notice, the passage of time, or both, would be an Event of Default.  “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees  or L/C Borrowings, a rate equal to the highest interest rate (including any Applicable Rate) otherwise  applicable to such Loan, plus two percent (2.0%) per annum, regardless of the Debt to Capitalization  Ratio (subject, in all cases other than a Default occurring under Sections 8.01(a) or (f), to the request of  the Required Lenders), and (b) when used with respect to Letter of Credit Fees or L/C Borrowings, a rate  equal to the Applicable Rate plus two percent (2.0%) per annum.  “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 Administrative Agent and Borrower in writing that such  failure is the result of such Lender’s determination that one or more conditions precedent to funding (each  of which conditions precedent, together with any applicable default, shall be specifically identified in  such writing) has not been satisfied, or (ii) pay to Administrative Agent, any L/C Issuer or any other  Lender any other amount required to be paid by it hereunder (including in respect of its participation in  Letters of Credit) within two (2) Business Days of the date when due, (b) has notified Borrower,  Administrative Agent or any L/C Issuer 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 Administrative  Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with  its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting  Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and  Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a  proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator,  trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization  or liquidation of its business or assets, including the 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  





 






4889-9733-0207 v.9     - 9 -    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 Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a)  through (d) above, and of the effective date of such status, shall be conclusive and binding absent  manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as  of the date established therefor by Administrative Agent in a written notice of such determination, which  shall be delivered by Administrative Agent to Borrower, each L/C Issuer and each Lender promptly  following such determination.  “Designated Jurisdiction” means any country or territory to the extent that such country or  territory itself is the subject of any Sanction.  “Disposition” or “Dispose” means the sale, transfer, license, lease (other than a real estate lease  or telecommunications license entered into in the ordinary course of business as part of Property leasing  operations) or other disposition (in one transaction or in a series of transactions and whether effected  pursuant to a Division or otherwise) (including any sale and leaseback transaction) of any property by any  Person, 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.  “Dividing Person” has the meaning specified in the definition of “Division.”  “Division” means the division of the assets, liabilities and/or obligations of a Person (the  “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar  arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing  Person may or may not survive.  “Dollar” and “$” mean lawful money of the United States.  “Domestic Subsidiaries” means all direct and indirect Subsidiaries of a Credit Party that are  domiciled, incorporated or organized under the laws of any state of the United States or the District of  Columbia (or have any material assets located in the United States).  “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” has the meaning specified in Section 10.17(b).  “Electronic Record” has the meaning specified in Section 10.17(b).  





 






4889-9733-0207 v.9     - 10 -    “Electronic Signature” has the meaning specified in Section 10.17(b).  “Eligible Assignee” means any Person that meets the requirements to be an assignee under  Section 10.06(b)(iii) and 10.06(b)(v) (subject to such consents, if any, as may be required under  Section 10.06(b)(iii)).  “Environmental Laws” means any and all applicable Laws relating to pollution and the  protection of the environment or the release of any materials into the environment, including those related  to hazardous substances or wastes, 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), of Borrower, any other  Credit Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon  (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,  treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the  release or threatened release of any Hazardous Materials into the environment or (e) any contract,  agreement or other consensual arrangement pursuant to which liability is assumed or imposed with  respect to any of the foregoing.  “Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase  or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in)  such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other  ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition  from such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member or trust interests therein), whether voting or nonvoting,  and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of  determination.  “Equity Issuance” means any issuance by a Credit Party to any Person of its Equity Interests,  including pursuant to the exercise of options or warrants or pursuant to the conversion of any debt  securities to equity.  “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 Borrower within the meaning of Section 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 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 Borrower or any ERISA Affiliate from a Multiemployer Plan or  notification that a Multiemployer Plan is in reorganization; (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  





 






4889-9733-0207 v.9     - 11 -    Code or Sections 303, 304 and 305 of ERISA; or (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  Borrower or any ERISA Affiliate.  “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 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) 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 in writing by Borrower  under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent  that, pursuant to Section 3.01(b) or (c), amounts with respect to such Taxes were payable either to such  Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately  before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with  Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.  “Existing Credit Agreement” has the meaning specified in the introductory paragraph hereto.  “Existing Letters of Credit” means the Letters of Credit set forth on Schedule 1.01.  “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), any current or future regulations or official interpretations thereof and any agreements  entered into pursuant to Section 1471(b)(1) of the Code.  “Federal Funds 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 percent (0.0%), such rate shall be deemed to be zero percent (0.0%) for purposes  of this Agreement.  “Fee Letters” means any fee letter by and among Borrower and any Arranger (or an Affiliate of  an Arranger).  “Finished Lot” means lots of Land Held for Future Development/Disposition as to which (a) a  final subdivision map or the equivalent (such as site condominium documents) has been recorded or filed;  (b) all major off-site construction and infrastructure necessary to permit construction of Housing Units  has been completed to local governmental requirements; (c) utilities have been installed to local  





 






4889-9733-0207 v.9     - 12 -    government requirements; and (d) building permits may be issued and construction commenced without  the satisfaction of any further material conditions.  “Foreign Lender” means (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and  (b) if Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction  other than that in which Borrower is resident for tax purposes. For purposes of this definition, the United  States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.  “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, with respect to the L/C  Issuers, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than  L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders or Cash Collateralized in accordance with the terms hereof.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.  “GAAP” means generally accepted accounting principles in the United States set forth in the  opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified  Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or  such other principles as may be approved by a significant segment of the accounting profession in the  United States, that are applicable to the circumstances as of the date of determination, consistently  applied.  “Governmental Authority” means the government of the United States or any other nation, or of  any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,  regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,  regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).  “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable  or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly,  and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or  supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or  lease property, securities or services for the 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 or other obligation of any other Person, whether or not such  Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any  holder of such Indebtedness to obtain any such Lien). 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.  





 






4889-9733-0207 v.9     - 13 -    “Guarantors” means each of the Material Subsidiaries of Borrower and each Additional Credit  Party which has executed a Guaranty, including any Supplemental Guaranty, hereunder, together with  their successors and assigns, and “Guarantor” means any one of the Guarantors.  “Guaranty” means the Third Amended and Restated Guaranty, in substantially the form of  Exhibit E, executed by Guarantors in favor of Administrative Agent, for the benefit of the Lenders,  including by any Supplemental Guaranty executed by a Guarantor after the Closing Date.   “Guaranty Obligations” means, with respect to any Person, without duplication, any obligations  (other than endorsements in the ordinary course of business of negotiable instruments for deposit or  collection) guaranteeing or intending to guarantee any Indebtedness of any other Person in any manner,  whether direct or indirect, and including any obligation, whether or not contingent, (a) to purchase any such  Indebtedness or other obligation or any property constituting security therefore, (b) to advance or provide  funds or other support for the payment or purchase of such Indebtedness or obligation or to maintain working  capital, solvency or other balance sheet condition of such other Person (including maintenance agreements,  comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the  benefit of the holder of Indebtedness of such other Person, (c) to lease or purchase property, securities or  services primarily for the purpose of assuring the owner of such Indebtedness against loss in respect thereof  or (d) to otherwise assure or hold harmless the owner of such Indebtedness or obligation against loss in  respect thereof; provided, that a guaranty of Non-Recourse Land Financing shall not be deemed to be a  Guaranty Obligation until, and only to the extent that, such Non-Recourse Land Financing ceases to be Non- Recourse Land Financing; and provided further, that a guaranty of performance and other obligations of a  joint venture (other than a Payment Guaranty) shall not constitute a Guaranty Obligation unless and until the  occurrence of a default in the obligation that is guaranteed. The amount of any Guaranty Obligation  hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the  outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of  which such Guaranty Obligation is made.  “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or  asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all  other substances or wastes of any nature regulated pursuant to any applicable Environmental Law.  “Hedging Agreements” means any interest rate protection agreements, foreign currency  exchange agreements, commodity futures agreements or other interest or exchange rate hedging  agreements.  “Housing Unit” means a residential housing unit (whether completed or under construction)  owned by a Credit Party that is (or, upon completion of construction thereof, will be) available for sale.  “Housing Units Under Contract” means a Housing Unit owned by a Credit Party as to which  such Credit Party has a bona fide contract of sale, in a form customarily employed by such Credit Party  and reasonably satisfactory to Administrative Agent, entered into with a Person who is not an Affiliate of  a Credit Party, under which contract: (a) no defaults then exist; (b) the purchaser has made the customary  earnest money deposit; and (c) there are no contingencies (other than customary contingencies in the  ordinary course of the applicable Credit Party’s business).  “Improvements” means on and off-site development work including filling to grade, main water  distribution and sewer collection systems and drainage system installation, paving, and other  improvements necessary for the use of residential dwelling units and as otherwise required pursuant to  development agreements which may have been entered into with Governmental Authorities.  





 






4889-9733-0207 v.9     - 14 -    “Indebtedness” means, as to any Person, without duplication, (a) all obligations of such Person  for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar  instruments, or upon which interest payments are customarily made, (c) all obligations of such Person  under conditional sale or other title retention agreements relating to property purchased by such Person to  the extent of the value of such property (other than customary reservations or retentions of title under  agreements with suppliers entered into in the ordinary course of business), (d) all obligations, other than  intercompany items, of such Person issued or assumed as the deferred purchase price of property or  services purchased by such Person which would appear as liabilities on a balance sheet of such Person,  (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing  right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production  from, property owned or acquired by such Person, whether or not the obligations secured thereby have  been assumed, (f) all Guaranty Obligations of such Person, (g) the principal portion of all obligations of  such Person under (i) Capital Leases and (ii) any synthetic lease, tax retention operating lease, off-balance  sheet loan or similar off balance sheet financing product of such Person where such transaction is  considered borrowed money indebtedness for tax purposes but is classified as an operating lease in  accordance with GAAP, (h) all net obligations of such Person in respect of Hedging Agreements, (i) all  preferred stock issued by such Person and required by the terms thereof to be redeemed, or for which  mandatory sinking fund payments are due by a fixed date, (j) the aggregate amount of uncollected  accounts receivable of such Person subject at such time to a sale of receivables (or similar transaction)  regardless of whether such transaction is effected without recourse to such Person or in a manner that  would not be reflected on the balance sheet of such Person in accordance with GAAP, (k) obligations of  such Person to reimburse the issuer of a letter of credit for amounts that have been paid by such issuer in  respect of drawings thereunder, (l) current liabilities of such Person for unfunded vested pensions, (m) all  obligations of such Person to repurchase any securities which repurchase obligation is related to the  issuance thereof, including obligations commonly known as residual equity appreciation potential shares,  and (n) such Person’s pro rata share of the “Indebtedness” (i.e., the obligations and liabilities under  clauses (a) through (m) above) of any joint venture in which such Person holds an interest. In no event  shall Indebtedness include (a) Indebtedness owed by one Credit Party to another Credit Party or (b) any  obligation of a Credit Party to reimburse the issuer of a performance bond issued in the ordinary course of  business.  “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to  any payment made by or on account of any obligation of any Credit Party under any Credit Document and  (b) to the extent not otherwise described in (a), Other Taxes.  “Indemnitees” has the meaning specified in Section 10.04(b).  “Information” has the meaning specified in Section 10.07.  “Intellectual Property” has the meaning set forth in Section 5.19.  “Interest Payment Date” means (a) as to any Daily SOFR Rate Loan, the first (1st) Business Day  of each calendar month and the Maturity Date, (b) as to any Base Rate Loan, the last Business Day of  each March, June, September and December and the Maturity Date and (c) as to any Term SOFR Rate  Loan, the last day of each Interest Period applicable to such Term SOFR Rate Loan and the Maturity  Date; provided, however, that if any Interest Period for a Term SOFR Rate Loan exceeds three months,  the respective dates that fall every three (3) months after the beginning of such Interest Period shall also  be Interest Payment Dates.  “Interest Period” means, as to each Term SOFR Rate Loan, the period commencing on the date  such Term SOFR Rate Loan is disbursed or converted to or continued as a Term SOFR Rate Loan and  





 






4889-9733-0207 v.9     - 15 -    ending on the date one (1), three (3) or six (6) months thereafter, as selected by Borrower in its Loan Notice  (in the case of each requested Interest Period, subject to availability); provided that:  (a) any Interest Period that would otherwise end on a day that is not a Business Day  shall be extended to the next succeeding Business Day unless 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 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.  “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 or other securities of  another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or  purchase or other acquisition of any other debt or equity participation or interest in, another Person,  including any partnership or joint venture interest in such other Person and any arrangement pursuant to  which the investor Guarantees 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 that constitute a business unit.  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.  “Investment Grade Rating” means a long term unsecured senior, non-credit enhanced debt rating  of at least (a) BBB- by S&P or (b) Baa3 by Moody’s.  “IRS” means the United States Internal Revenue Service.  “ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”  published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as  may be in effect at the time of issuance).  “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement and instrument entered into by any L/C Issuer and Borrower (or any  Subsidiary) or in favor of any L/C Issuer and relating to such Letter of Credit.  “Land Held for Future Development/Disposition” means Real Estate owned by the Credit  Parties held for future development or disposition and (a) with respect to which all requisite zoning  requirements and land use requirements have been satisfied, and all requisite approvals have been  obtained (on a final and unconditional basis) from all applicable governmental authorities (other than  approvals which are simply ministerial and non-discretionary in nature), in order to develop the Real  Estate as a residential housing project and construct Housing Units thereon; and (b) as to Real Estate  located in California and other jurisdictions that have comparable requirements and procedures, which  satisfies the requirements of clause (a) immediately above, and which is subject to a currently effective  vesting tentative map (unless a county or city where the land is located does not grant vesting tentative  maps) which has received all necessary approvals (on a final and unconditional basis, other than future  conditions imposed on the development in order to obtain such approvals) by all applicable Governmental  Authorities.  





 






4889-9733-0207 v.9     - 16 -    “Land Under Development” means Land Held for Future Development/Disposition upon which  construction of Improvements has commenced but not been completed and for which: (a) to the extent  required, a performance bond, surety or other security has been issued to and in favor of and  unconditionally accepted by each local agency and all relevant Governmental Authorities, including any  municipal utility district in which the Real Estate is situated with regard to all work to be performed  pursuant to each and all of said subdivision improvement agreements or other agreements; (b) all  necessary plans have been approved by all relevant Governmental Authorities for the installation of any  and all Improvements then being installed upon such Real Estate; (c) all necessary permits have been  issued for the installation of said Improvements; and (d) utility services necessary for construction of  Improvements and residential dwelling units and the operation thereon for the purpose intended will be  available to such Real Estate upon completion of the Improvements and the applicable Credit Party has  obtained a “will serve” letter from each and every utility company to deliver necessary utility services to  such Real Estate.  “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 Lender, such Lender’s funding of its participation in  any L/C Borrowing in accordance with its Applicable 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 Borrowing.  “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 a payment made by an L/C Issuer pursuant to a Letter of Credit.  “L/C Issuers” means each Lender listed on Schedule 2.01B, in its capacity as an issuer of Letters  of Credit hereunder, and each other Lender (if any) as Borrower may from time to time select as an L/C  Issuer hereunder pursuant to Section 2.03; provided that such Lender has agreed in writing to be an L/C  Issuer. Any L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by  Affiliates of such L/C Issuer, in which case the term “L/C Issuer” shall include any such Affiliate with  respect to Letters of Credit issued by such Affiliate. Each reference herein to the “L/C Issuer” in  connection with a Letter of Credit or other matter shall be deemed to be a reference to the relevant L/C  Issuer with respect thereto.  “L/C Obligations” means, at any time, the sum of (a) the aggregate undrawn amount of all  outstanding Letters of Credit at such time, including any automatic or scheduled increases provided for by  the terms of such Letters of Credit, determined without regard to whether any conditions to drawing could  be met at that time, plus (b) the aggregate amount of all Unreimbursed Amounts, including all L/C  Borrowings. The L/C Obligations of any Lender at any time shall be its Applicable Percentage of the total  L/C Obligations at such time. 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 3.13 or Rule 3.14 of the ISP or similar terms of the Letter of Credit itself, or if  compliant documents have been presented but not yet honored, such Letter of Credit shall be deemed to  be “outstanding” and “undrawn” in the amount so remaining available to be paid, and the obligations of  





 






4889-9733-0207 v.9     - 17 -    Borrower and each Lender shall remain in full force and effect until the L/C Issuers and the Lenders shall  have no further obligations to make any payments or disbursements under any circumstances with respect  to any Letter of Credit.  “Lender” has the meaning specified in the introductory paragraph hereto.  “Lending Office” means, as to any Lender, the office or offices of such Lender described as such  in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time  to time notify Borrower and Administrative Agent, which office may include any Affiliate of such Lender  or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires  each reference to a Lender shall include its applicable Lending Office.  “Letter of Credit” means any standby letter of credit issued hereunder providing for the payment  of cash upon the honoring of a presentation thereunder, and shall include the Existing Letters of Credit.  “Letter of Credit Application” means an application and agreement for the issuance or  amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.  “Letter of Credit Commitment” means, with respect to an L/C Issuer, the commitment of such  L/C Issuer to act as an L/C Issuer and issue Letters of Credit hereunder. Each L/C Issuer’s Letter of Credit  Commitment on the Closing Date is set forth on Schedule 2.01B, which amount may be adjusted from  time to time pursuant to a written agreement executed by Borrower, Administrative Agent and such L/C  Issuer or as provided for in Section 10.06(f)(i). If a Lender agrees to become an L/C Issuer after the  Closing Date, then such L/C Issuer’s Letter of Credit Commitment shall be the amount agreed to in  writing by Borrower, Administrative Agent and such L/C Issuer, which amount may be adjusted from  time to time pursuant to a written agreement executed by Borrower, Administrative Agent and such L/C  Issuer. If Borrower permanently reduces the Aggregate Commitments pursuant to Section 2.05, then the  aggregate Letter of Credit Commitments and the Letter of Credit Commitment of each L/C Issuer shall be  reduced on a proportionate basis.   “Letter of Credit Expiration Date” means the day that is one (1) year after the Maturity Date (or,  if such day is not a Business Day, the next preceding Business Day).  “Letter of Credit Fee” has the meaning specified in Section 2.03(i).  “Letter of Credit Sublimit” means, for any date of determination, an amount equal to the then- current Aggregate Commitments.   “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit  arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security  interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever  (including any conditional sale or other title retention agreement, any easement, right of way or other  encumbrance on title to real property, and any financing lease having substantially the same economic  effect as any of the foregoing).  “Loan” has the meaning specified in Section 2.01.  “Loan Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one  Type to the other, or (c) a continuation of Term SOFR Rate Loans, pursuant to Section 2.02(a), which  shall be substantially in the form of Exhibit A or such other form as may be approved by Administrative  Agent (including any form on an electronic platform or electronic transmission system as shall be  





 






4889-9733-0207 v.9     - 18 -    approved by Administrative Agent), appropriately completed and signed by a Responsible Officer of  Borrower.  “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect  on, the operations, business, assets, properties, liabilities (actual or contingent), or financial condition of  the Credit Parties, taken as a whole, (b) a material adverse effect on the rights and remedies of  Administrative Agent or any Lender under any Credit Document, or of the ability of the Credit Parties  taken as a whole to perform their obligations under any Credit Document, and (c) a material adverse  effect upon the legality, validity, binding effect or enforceability against any Credit Party of any Credit  Document to which it is a party.  “Material Subsidiary” means any Domestic Subsidiary of Borrower, now owned or hereafter  acquired, that has assets (excluding intercompany loans payable by a Subsidiary that is not a Credit Party  or that are subordinated to the Obligations) with a fair market value of $10,000,000 or greater (other than  Excluded Subsidiaries); provided that in no event may there exist Domestic Subsidiaries of Borrower  (other than the Excluded Subsidiaries) that have assets (excluding intercompany loans payable by a  Subsidiary that is not a Credit Party or that are subordinated to the Obligations), in the aggregate, with a  fair market value in excess of $100,000,000 that are not Guarantors hereunder. For purposes of this  definition, the following Subsidiaries (collectively, the “Excluded Subsidiaries”) shall not be considered  Material Subsidiaries: (a) Pulte Mortgage LLC and all other Mortgage Banking Subsidiaries; (b) North  American Builders Indemnity Company and its Subsidiaries; (c) Innovative Construction Group LLC and  any other Offsite Construction Subsidiaries; (d) Subsidiaries the investment in which was made as  permitted by clause (f) of the definition of Permitted Investments; (e) any Subsidiary (and its immediate  holding company parent, so long as such parent’s primary assets are Equity Interests in Subsidiaries  described in this clause (e)) formed for the specific purpose of (i) acquiring mortgages or other assets  from a Credit Party, for cash or Cash Equivalents and at a value which is comparable to that which would  be obtained for such assets on an arm’s length transaction and (ii) entering into a securitization program  (or similar transaction or series of transactions) with respect to the acquired assets; provided that the sole  recourse of such Subsidiary’s creditors is the assets of such Subsidiary or another Person that is not a  Credit Party; (f) a Domestic Subsidiary all of whose material assets consist of ownership of a foreign  entity or assets of a foreign entity; provided that the investment in any such Subsidiary subsequent to the  Closing Date must be a Permitted Investment; and (g) any Subsidiary that is a controlled foreign  corporation within the meaning of Section 957 of the Code; provided that the investment in any such  Domestic Subsidiary subsequent to the Closing Date must be a Permitted Investment.  “Maturity Date” means June 14, 2027.  “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances provided pursuant to Section 2.03(o), an amount equal to one hundred  percent (100%) of the total L/C Obligations, (b) with respect to Cash Collateral consisting of cash or  deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a  Defaulting Lender, an amount equal to one hundred percent (100%) of the Fronting Exposure of the  applicable L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (c) with  respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the  provisions of Section 2.14(a), an amount equal to one hundred percent (100%) of the Outstanding  Amount of all L/C Obligations, and (d) otherwise, an amount determined by Administrative Agent and  the applicable L/C Issuer in their sole discretion.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  





 






4889-9733-0207 v.9     - 19 -    “Mortgage Banking Subsidiaries” means Pulte Mortgage LLC, Centex Financial Services, LLC  and their mortgage and/or title related Subsidiaries and any other Subsidiary of Borrower engaged  primarily in the mortgage banking business.   “Multiemployer Plan” means any employee benefit plan of the type described in  Section 4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make  contributions, or during the preceding five plan years, has made or been obligated to make contributions.  “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including  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 Book Value” means, with respect to an asset owned by a Credit Party, the gross investment  of such Credit Party in the asset, less all reserves (including loss reserves and reserves for depreciation)  attributable to that asset, all determined in accordance with GAAP consistently applied.  “Net Housing Unit Proceeds” means, in connection with the sale of any Housing Unit by a  Credit Party, the gross sales price, as adjusted by all bona fide prorations and adjustments to the sales  price required to be made pursuant to the terms of the sales contract, less the aggregate amount of bona  fide closing costs due to any Person, provided that, if such closing costs are due to an Affiliate of a Credit  Party, such costs comply with Section 7.07.  “Net Income” means, with respect to any Person for any period, the net income after taxes of  such Person for such period, as determined in accordance with GAAP.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the  terms of Section 10.01 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-Recourse Land Financing” means any Indebtedness of any Credit Party for which the  owner of such Indebtedness has no recourse, directly or indirectly, to a Credit Party for the principal of,  premium, if any, and interest on such Indebtedness, and for which a Credit Party is not, directly or  indirectly, obligated or otherwise liable for the principal of, premium, if any, and interest on such  Indebtedness, except pursuant to mortgages, deeds of trust or other security interests or other recourse  obligations or liabilities in respect of specific land or other real property interests of a Credit Party;  provided that recourse obligations or liabilities of a Credit Party solely for indemnities, covenants or  breach of warranty, representation or covenant in respect of any Indebtedness will not prevent  Indebtedness from being classified as Non-Recourse Land Financing.  “Note” means a promissory note made by Borrower in favor of a Lender evidencing Loans made  by such Lender, substantially in the form of Exhibit B.  “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of,  any Credit Party arising under any Credit Document or otherwise with respect to any Loan or Letter of  Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or  to become due, now existing or hereafter arising and including interest and fees that accrue after the  commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any  





 






4889-9733-0207 v.9     - 20 -    Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such  interest and fees are allowed claims in such proceeding.   “OFAC” means the Office of Foreign Assets Control of the United States Department of the  Treasury.  “Offsite Construction Subsidiaries” means Innovative Construction Group LLC and any other  Subsidiary of Borrower engaged primarily in the design and off-site manufacturing, production and  fabrication of construction materials and related onsite assembly/installation.  “Organization Documents” means, (a) with respect to any corporation, the certificate or articles  of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any  non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating agreement; and (c) with respect to any partnership, joint venture,  trust or other form of business entity, the partnership, joint venture or other applicable agreement of  formation or organization and any agreement, instrument, filing or notice with respect thereto filed in  connection with its formation or organization with the applicable Governmental Authority in the  jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or  organization of such entity.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, or engaged in  any other transaction pursuant to or enforced any Credit 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 Credit Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment or participation (other than an assignment made pursuant to  Section 3.06).  “Outstanding Amount” means (a) with respect to Loans on any date, the aggregate outstanding  principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Loans  occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C  Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any  other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any  reimbursements by Borrower of Unreimbursed Amounts.  “Participant” has the meaning specified in Section 10.06(d).  “Participant Register” has the meaning specified in Section 10.06(d).  “Payment Guaranty” means, with respect to any Person, such Person’s guaranty of the  obligations of a joint venture to make principal payments of its Indebtedness, whether regularly scheduled  or payable upon maturity by acceleration or otherwise, but shall not include a guaranty in which the  payment obligations are limited to principal payments of the joint venture’s Indebtedness required to be  made solely to cure the joint venture’s failure to maintain or satisfy a specified loan-to-value ratio or other  financial covenant or condition with respect to the collateral that secures such Indebtedness of the joint  venture.  





 






4889-9733-0207 v.9     - 21 -    “PBGC” means the Pension Benefit Guaranty Corporation.   “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 Borrower and any ERISA Affiliate and  is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412  of the Code.  “Permitted Investments” means Investments which are (a) cash or Cash Equivalents, (b) accounts  receivable created, acquired or made in the ordinary course of business and payable or dischargeable in  accordance with customary trade terms, (c) inventory, raw materials and general intangibles acquired in  the ordinary course of business, (d) Investments by a Credit Party in another Credit Party, (e) loans to  directors, officers, employees, agents, customers or suppliers in the ordinary course of business, including  the financing to purchasers of homes and other residential properties from a Credit Party, not to exceed, in  the aggregate, $10,000,000 at any one time, (f) Investments in international home building and related  ventures (whether in joint ventures or otherwise) not to exceed $10,000,000 during the term of this  Agreement, (g) Investments in (i) Pulte Mortgage LLC as of December 31, 2021 and (ii) Pulte Mortgage  LLC and other Mortgage Banking Subsidiaries after December 31, 2021 in an amount not to exceed at  any one time the sum of (x) $250,000,000 plus (y) amounts (net of applicable taxes) received by the  Credit Parties from any Mortgage Banking Subsidiaries, as a dividend, subsequent to December 31, 2021,  (h) acquisitions of mortgages from any Mortgage Banking Subsidiaries at market or better than market  terms for similar types of loans, (i) Investments in Capital Expenditures, (j) Investments in North America  Builders Indemnity Company and its Subsidiaries, or (k) other Investments not included under clauses (a)  through (j) above (including Investments in joint ventures) which do not, in the aggregate, exceed twenty- five percent (25%) of Tangible Net Worth at any one time. For purposes of clause (g) above, Investments  shall include (x) transfers or other Dispositions of assets from a Credit Party to a Mortgage Banking  Subsidiary and (y) dividends and distributions by a Credit Party to a Mortgage Banking Subsidiary (but  only to the extent such dividends or distributions are not immediately thereafter distributed to a Credit  Party).  “Permitted Liens” means: (a) Liens securing Obligations; (b) Liens for taxes not yet due or due  but not yet delinquent or Liens for taxes being contested in good faith by appropriate proceedings for  which adequate reserves determined in accordance with GAAP have been established (and as to which  the property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof);  (c) Liens in respect of property imposed by law arising in the ordinary course of business such as  materialmen’s, mechanics’, warehousemen’s, carrier’s, landlords’ and other nonconsensual statutory  Liens which are not yet due and payable or which are being contested in good faith by appropriate  proceedings for which adequate reserves determined in accordance with GAAP have been established  (and as to which the property subject to any such Lien is not yet subject to foreclosure, sale or loss on  account thereof); (d) pledges or deposits made in the ordinary course of business to secure payment of  worker’s compensation insurance, unemployment insurance, pensions or social security programs;  (e) Liens arising from good faith deposits in connection with or to secure performance of tenders, bids,  leases, government contracts, performance and return-of-money bonds and other similar obligations  incurred in the ordinary course of business (other than obligations in respect of the payment of borrowed  money); (f) Liens arising in connection with or to secure performance of statutory obligations and surety  and appeal bonds; (g) easements, rights-of-way, restrictions (including zoning restrictions), matters of  plat, minor defects or irregularities in title and other similar charges or encumbrances not, in any material  respect, impairing the use of the encumbered property for its intended purposes; (h) judgment Liens that  would not constitute an Event of Default; (i) Liens in connection with Capital Leases and Liens securing  Indebtedness permitted by Section 7.01(g) and (h); (j) Liens arising by virtue of any statutory or common  law provision relating to banker’s liens, rights of setoff or similar rights as to deposit accounts or other  funds maintained with a creditor depository institution; (k) Liens existing on the Closing Date and  





 






4889-9733-0207 v.9     - 22 -    identified on Schedule 5.09; (l) Liens granted to secure any Indebtedness permitted by Section 7.01(b);  provided that (i) no such Lien shall extend to any property other than the property subject thereto on the  Closing Date and (ii) the principal amount of the Indebtedness secured by such Liens shall not be  increased from that existing as of the Closing Date (as such Indebtedness has been amortized subsequent  to the Closing Date); (m) Liens over a credit balance on a bank or deposit account or other funds  maintained with a creditor depository institution arising under the general business conditions of the bank  or financial institution at which the account is held, including under any credit card, purchasing card or  similar program, but not securing Indebtedness; (n) Liens arising pursuant to vexatious, frivolous or  meritless claims, suits, actions or filings, or other similar bad faith actions, taken by a Person not an  Affiliate of Borrower; provided that a Credit Party is disputing such Lien in good faith and by appropriate  proceedings; and (o) Liens on assets securing contingent consideration that may be payable by a Credit  Party to the seller or sellers of such assets as a profit, price, or premium participation in such assets or  payable to the seller or sellers as a post-closing fee for marketing or similar post-closing arrangements,  provided that such obligations are not past due and the amount thereof does not exceed the cost of such  assets.   “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 Borrower or any ERISA Affiliate or any such Plan to which  Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.  “Platform” has the meaning specified in Section 6.01.  “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 6.01.  “Qualified Subordinated Debt” means Subordinated Debt issued by the Credit Parties, which  (a) matures on or after the first anniversary of the Maturity Date (and reduced, for purposes of this  definition, by any principal amortization payments of such Subordinated Debt payable prior to the  Maturity Date) and (b) is in an aggregate amount not to exceed $300,000,000.   “Real Estate” means land, rights in land and interests therein and equipment, structures,  Improvements, furnishings, fixtures and buildings located on or used in connection with land, rights in  land or interests therein, but shall not include mortgages or interests therein.  “Real Properties” means such real properties as the Credit Parties may own or lease (as lessee or  sublessee) from third parties from time to time.  “Recipient” means Administrative Agent, any Lender, any L/C Issuer or any other recipient of  any payment to be made by or on account of any obligation of any Credit Party hereunder.  “Register” has the meaning specified in Section 10.06(c).  “Regulation T, U, or X” means Regulation T, U or X, respectively, of the FRB as from time to  time in effect and any successor to all or a portion thereof.  





 






4889-9733-0207 v.9     - 23 -    “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of  such Person and of such Person’s Affiliates.  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty (30)-day notice period has been waived.  “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or  continuation of Loans, a Loan Notice, and (b) with respect to an L/C Credit Extension, a Letter of Credit  Application.  “Required Lenders” means, at any time, Lenders holding in the aggregate more than fifty percent  (50%) of the Aggregate Commitments or, if such Commitments have been terminated, Lenders holding in  the aggregate more than fifty percent (50%) of the Total Outstandings at such time. The Commitment of,  and the portion of the Total Outstandings held by any Defaulting Lender shall be disregarded in  determining Required Lenders at any time; provided that the amount of any participation in any  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 applicable L/C Issuer,  as the case may be, in making such determination.  “Rescindable Amount” has the meaning specified in Section 2.11(b)(ii).  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Responsible Officer” means the chief executive officer, president, chief financial officer,  treasurer, assistant treasurer or controller of a Credit Party, and solely for purposes of the delivery of  incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Credit Party  and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the  applicable Credit Party so designated by any of the foregoing officers in a notice to Administrative Agent  or any other officer or employee of the applicable Credit Party designated in or pursuant to an agreement  between the applicable Credit Party and Administrative Agent. Any document delivered hereunder that is  signed by a Responsible Officer of a Credit Party shall be conclusively presumed to have been authorized  by all necessary corporate, partnership and/or other action on the part of such Credit Party and such  Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit Party.   “Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal  amount at such time of its outstanding Loans and such Lender’s participation in L/C Obligations at such  time.  “Sale and Leaseback Transaction” means a sale or transfer made by a Credit Party (except a sale  or transfer made from one Credit Party to another Credit Party) of any property which is either (a) a  manufacturing plant, warehouse, office building or model home whose book value constitutes one percent  (1%) or more of Consolidated Net Tangible Assets as of the date of determination or (b) any property  which is not a manufacturing plant, warehouse, office building or model home whose book value  constitutes five percent (5%) or more of Consolidated Net Tangible Assets as of the date of  determination, if such sale or transfer is made with the intention of leasing, or as part of an arrangement  involving the lease of, such property to Borrower or a Material Subsidiary.  “S&P” means S&P Global Ratings, a subsidiary of S&P Global, Inc., and any successor thereto.  





 






4889-9733-0207 v.9     - 24 -    “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, Her  Majesty’s Treasury (“HMT”) or other relevant sanctions authority.  “Scheduled Unavailability Date” has the meaning specified in Section 3.03(b)(ii).  “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.  “Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’  equity of Borrower and its Subsidiaries as of that date determined in accordance with GAAP.  “Single Employer Plan” means any Plan which is covered by Title IV of ERISA, but which is  not a Multiemployer Plan.  “SOFR” means the Secured Overnight Financing Rate as administered by the Federal Reserve  Bank of New York (or a successor administrator).  “SOFR Adjustment” means 0.10% (10 basis points).  “SOFR Administrator” means the Federal Reserve Bank of New York, as the administrator of  SOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of New York or  other person acting as the SOFR Administrator at such time.  “Solvent” means, with respect to each Credit Party as of a particular date, that on such date  (a) such Credit Party is able to pay its debts and other liabilities, contingent obligations and other  commitments as they mature in the normal course of business, (b) such Credit Party does not intend to,  and does not believe that it will, incur debts or liabilities beyond such Credit Party’s ability to pay as such  debts and liabilities mature in their ordinary course, (c) such Credit Party is not engaged in a business or a  transaction, and is not about to engage in a business or a transaction, for which such Credit Party’s assets  would constitute unreasonably small capital after giving due consideration to the prevailing practice in the  industry in which such Credit Party is engaged or is to engage, (d) the fair value of the assets of such  Credit Party is greater than the total amount of liabilities (excluding (i) Letters of Credit and surety bonds  issued in the normal course of business in connection with such Credit Party’s development activities and  (ii) intercompany indebtedness owed to other Credit Parties), including contingent liabilities of such  Credit Party and (e) the present fair saleable value of the assets of such Credit Party is not less than the  amount that will be required to pay the probable liability of such Credit Party on its debts as they become  absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that  such liabilities will be computed at the amount which, in light of all the facts and circumstances existing  at such time, represents the amount that can reasonably be expected to become an actual or matured  liability.  “Subordinated Debt” means any Indebtedness incurred by a Credit Party that is subordinated in  full to the Obligations on subordination terms acceptable to Administrative Agent.  “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 securities or other interests having  ordinary voting power for the election of directors or other governing body (other than securities or  interests having such power only by reason of the happening of a contingency) are at the time beneficially  owned, or the management of which is otherwise controlled, directly, or indirectly through one or more  





 






4889-9733-0207 v.9     - 25 -    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 Borrower.  “Successor Rate” has the meaning specified in Section 3.03.  “Supplemental Guaranty” means any Supplemental Guaranty (in the form of Exhibit A to the  form of Guaranty attached hereto as Exhibit E) executed and delivered by a Material Subsidiary of  Borrower after the Closing Date.  “Tangible Net Worth” means, as of any date, Shareholders’ Equity or net worth of Borrower, as  determined in accordance with GAAP less intangibles (as determined in accordance with GAAP).  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.  “Term SOFR” means:  (a) for any Interest Period with respect to a Term SOFR Rate Loan, the rate per annum equal  to the Term SOFR Screen Rate two (2) 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. Eastern Time 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; 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 Term SOFR determined in accordance with either of the foregoing clauses (a) or  (b) of this definition would otherwise be less than zero percent (0.0%), then Term SOFR shall be deemed  zero percent (0.0%) for purposes of this Agreement.  “Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME  (or any successor administrator satisfactory to Administrative Agent) and published on the applicable  Reuters screen page (or such other commercially available source providing such quotations as may be  designated by Administrative Agent from time to time).  “Term SOFR Rate Loan” means a Loan made hereunder with respect to which the interest rate is  calculated by reference to Term SOFR.  “Term SOFR Replacement Date” has the meaning specified in Section 3.03.  “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and  Revolving Credit Exposure of such Lender at such time.  “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C  Obligations.  “Type” means, with respect to a Loan, its character as a Base Rate Loan, a Term SOFR Rate  Loan or a Daily SOFR Rate Loan.  





 






4889-9733-0207 v.9     - 26 -    “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person 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).  “Unrestricted Cash” means cash and Cash Equivalents of the Credit Parties (including cash that a  title company or other escrow agent is unconditionally prepared to disburse to a Credit Party) that are free  and clear of all Liens (other than Liens securing the Obligations) and not subject to any restrictions on the  use thereof to pay Indebtedness and other obligations of the Credit Parties.  “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.  “U.S. Person” means any Person that is a “United States Person” as defined in  Section 7701(a)(30) of the Code.  “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(g)(ii)(B)(3).  “Withholding Agent” means any Credit Party and 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 Credit  Document, unless otherwise specified herein or in such other Credit Document:  (a) The definitions of terms herein shall apply equally to the singular and plural  forms of the terms defined. Whenever the context may require, any pronoun shall include the  corresponding masculine, feminine and neuter forms. The words “include,” “includes” and  “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”  shall be construed to have the same meaning and effect as the word “shall.” Unless the context  requires otherwise, (i) any definition of or reference to any agreement, instrument or other  document (including any Organization Document) shall be construed as referring to such  





 






4889-9733-0207 v.9     - 27 -    agreement, instrument or other document as from time to time amended, supplemented or  otherwise modified (subject to any restrictions on such amendments, supplements or  modifications set forth herein or in any other Credit 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  Credit Document, shall be construed to refer to such Credit Document in its entirety and not to  any particular provision thereof, (iv) all references in a Credit Document to Articles, Sections,  Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and  Schedules to, the Credit Document in which such references appear, (v) any reference to any law  shall include all statutory and regulatory provisions consolidating, amending, replacing or  interpreting such law and any reference to any law or regulation shall, unless otherwise specified,  refer to such law or regulation as amended, modified or supplemented from time to time, and  (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and  to refer to 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 Credit Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or any  other Credit Document.  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, Indebtedness of Borrower and its Subsidiaries shall be deemed to be carried at  one hundred percent (100%) of the outstanding principal amount thereof, and the effects of FASB  ASC 825 on financial liabilities shall be disregarded.  (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 Credit Document, and either  Borrower or the Required Lenders shall so request, Administrative Agent, the Lenders and  Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original  intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);  provided that, until so amended, (A) such ratio or requirement shall continue to be computed in  accordance with GAAP prior to such change therein and (B) Borrower shall provide to  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. Notwithstanding any change in GAAP after the Closing Date that would require lease  obligations that would be treated as operating leases as of the Closing Date to be classified and  accounted for as Capital Leases or otherwise reflected on the consolidated balance sheet of  Borrower and its consolidated Subsidiaries, such obligations shall continue to be treated as  





 






4889-9733-0207 v.9     - 28 -    operating leases for all purposes under this Agreement and be excluded from the definition of  Indebtedness and other relevant definitions under this Agreement.  (c) Consolidation of Variable Interest Entities. All references herein to  consolidated financial statements of Borrower and its Subsidiaries or to the determination of any  amount for Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in  each case, be deemed to include each variable interest entity that Borrower is required to  consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as  defined herein.  1.04 Rounding. Any financial ratios required to be maintained by 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 stated amount of such Letter of Credit in effect at such time;  provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer  Document related thereto, provides for one or more automatic increases in the stated amount thereof, the  amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of  Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at  such time.  1.07 Interest Rates. Administrative Agent does not warrant, nor accept responsibility, nor  shall Administrative Agent have any liability with respect to the administration, submission or any other  matter related to any reference rate referred to herein or with respect to any rate (including, for the  avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an  alternative or replacement for or successor to any such rate (including any Successor Rate) (or any  component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes;  provided that the foregoing limitation on liability shall not apply to the extent of Administrative Agent’s  gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and  nonappealable judgment. 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 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 Borrower.  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 any  Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this  Agreement, and shall have no liability to Borrower, any Lender or any other person or entity for damages  of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs,  losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or  other action or omission related to or affecting the selection, determination, or calculation of any rate (or  component thereof) provided by any such information source or service.  Article II. The Commitments and Credit Extensions  2.01 Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees  to make loans (each such loan, a “Loan”) to Borrower from time to time, on any Business Day during the  





 






4889-9733-0207 v.9     - 29 -    Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such  Lender’s Commitment; provided, however, that after giving effect to any Borrowing, (a) the Total  Outstandings shall not exceed the Aggregate Commitments, and (b) the Revolving Credit Exposure of  any Lender shall not exceed such Lender’s Commitment. Within the limits of each Lender’s  Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this  Section 2.01, prepay under Section 2.04, and reborrow under this Section 2.01. Loans may be either  Term SOFR Rate Loans or Daily SOFR Rate Loans, except as further provided herein.  2.02 Borrowings, Conversions and Continuations of Loans.  (a) Each Borrowing, each conversion of Loans from one Type to the other, and each  continuation of Loans shall be made upon Borrower’s irrevocable notice to Administrative Agent,  which may be given by (A) telephone, or (B) a Loan Notice; provided that any telephonic notice  must be confirmed immediately by delivery to Administrative Agent of a Loan Notice. Each such  Loan Notice must be received by Administrative Agent not later than 11:00 a.m. (Central time)  (i) on the date of the request for any Borrowing of Daily SOFR Rate Loans or Base Rate Loans  and (ii) two (2) Business Days prior to the requested date of any Borrowing of, conversion to or  continuation of Term SOFR Rate Loans or conversion of Term SOFR Rate Loans to Daily SOFR  Rate Loans. Each Borrowing of, conversion to or continuation of Loans shall be in a principal  amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Unless otherwise  specified herein, no conversion from Term SOFR Rate Loans may be made other than at the end  of the corresponding Interest Period. Each Loan Notice shall specify (i) whether Borrower is  requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of  Term SOFR Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as  the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be  borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing  Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect  thereto. If Borrower fails to specify a Type of Loan or Term SOFR in a Loan Notice or if  Borrower fails to give a timely notice requesting a conversion or continuation of Term SOFR  Rate Loan, then the applicable Loans shall be made as, or converted to, Daily SOFR Rate Loans.  Any such automatic conversion to Daily SOFR Rate Loans shall be effective as of the last day of  the Interest Period then in effect with respect to the applicable Term SOFR Rate Loans. If  Borrower requests a Term SOFR Rate Loan, or a conversion to or continuation of Term SOFR  Rate 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 month.  (b) Following receipt of a Loan Notice, Administrative Agent shall promptly notify  each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely  notice of a conversion or continuation is provided by Borrower, Administrative Agent shall notify  each Lender of the details of any automatic conversion to Daily SOFR Rate Loans described in  the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its  Loan available to Administrative Agent in immediately available funds at 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), Administrative Agent shall make all funds so received  available to Borrower in like funds as received by Administrative Agent either by (i) crediting the  account of 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) Administrative Agent by Borrower; provided, however, that if, on the date the  Loan Notice with respect to such Borrowing is given by Borrower, there are L/C Borrowings  





 






4889-9733-0207 v.9     - 30 -    outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of  any such L/C Borrowings, and second, shall be made available to Borrower as provided above.  (c) Except as otherwise provided herein, a Term SOFR Rate Loan may be continued  only on the last day of an Interest Period for such Term SOFR Rate Loan.   (d) Administrative Agent shall promptly notify Borrower and Lenders of the interest  rate applicable to each portion of the Loan other than Daily SOFR Rate Loans upon  determination of same.  (e) Without limitation of any other conditions herein, a Borrowing or continuation of  or conversion to Term SOFR Rate Loans shall not be permitted if:  (i) a Default has occurred and is continuing and has not been waived by  Required Lenders or all Lenders, as applicable;   (ii) after giving effect to the requested Borrowing or continuation of or  conversion to Term SOFR Rate Loans, the sum of all Borrowings would exceed the  Aggregate Commitments;  (iii) the requested Borrowing or continuation of or conversion to Term SOFR  Rate Loans would cause more than ten (10) Interest Periods to be in effect at any one  time for Term SOFR Rate Loans, after giving effect to all Term SOFR Rate Loans, all  conversions of Loans from one Type to another, and all continuations of Loans as the  same Type;   (iv) the requested interest period does not conform to the definition of  Interest Period herein; or  (v) any of the circumstances referred to in Section 3.03 hereof shall apply  with respect to the requested Borrowing or continuation of or conversion to Term SOFR  Rate Loans.  (f) Borrower may not request a Borrowing of, or conversion to, Base Rate Loans  unless Daily Simple SOFR Rate Loans and Term SOFR Rate Loans are unavailable, as further  provided herein.  (g) With respect to Term SOFR and Daily Simple SOFR, 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 Credit 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 Credit Document; provided that, with respect to any such  amendment effected, Administrative Agent shall post each such amendment implementing such  Conforming Changes to Borrower and the Lenders reasonably promptly after such amendment  becomes effective.  (h) Notwithstanding anything to the contrary in this Agreement, any Lender may  exchange, continue or rollover all of the portion of its Loans in connection with any refinancing,  extension, loan modification or similar transaction permitted by the terms of this Agreement,  pursuant to a cashless settlement mechanism approved by Borrower, Administrative Agent, and  such Lender.  





 






4889-9733-0207 v.9     - 31 -    2.03 Letters of Credit.  (a) General. Subject to the terms and conditions set forth herein, in addition to the  Loans provided for in Section 2.01, Borrower may request any L/C Issuer, in reliance on the  agreements of the Lenders set forth in this Section 2.03, to issue, at any time and from time to  time during the Availability Period, Letters of Credit denominated in Dollars for its own account  or the account of any of its Subsidiaries in such form as is acceptable to such L/C Issuer in its  reasonable determination. Letters of Credit issued hereunder shall constitute utilization of the  Commitments.  (b) Notice of Issuance, Amendment, Extension, Reinstatement or Renewal. 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), Borrower shall deliver (or transmit  by electronic communication, if arrangements for doing so have been approved by the applicable  L/C Issuer) to an L/C Issuer selected by it and to Administrative Agent not later than 11:00 a.m.  at least three (3) Business Days (or such later date and time as Administrative Agent and such  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 applicable L/C Issuer, Borrower also shall submit a letter of  credit application and reimbursement agreement on such 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 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 Borrower to, or  entered into by Borrower with, an L/C Issuer relating to any Letter of Credit, the terms and  conditions of this Agreement shall control.  If Borrower so requests in any applicable Letter of Credit Application (or the amendment  of an outstanding Letter of Credit), the applicable 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 such 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 the date (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed  upon by Borrower and the applicable L/C Issuer at the time such Letter of Credit is issued. Unless  otherwise directed by the applicable L/C Issuer, Borrower shall not be required to make a specific  request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has  been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable  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 such L/C Issuer shall not  (i) permit any such extension if (A) such 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 year from the then-current expiration date) or (B) it has received notice (which  may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is  





 






4889-9733-0207 v.9     - 32 -    seven Business Days before the Non-Extension Notice Date from Administrative Agent that the  Required Lenders have elected not to permit such extension or (ii) 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 Business Days before the Non-Extension  Notice Date from Administrative Agent, any Lender or 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 such 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 Borrower shall be deemed to  represent and warrant that), after giving effect to such issuance, amendment, extension,  reinstatement or renewal (i) the aggregate L/C Obligations shall not exceed the Letter of Credit  Sublimit, (ii) the aggregate amount of the outstanding Letters of Credit issued by any L/C Issuer  shall not exceed its Letter of Credit Commitment, (iii) the Total Outstandings shall not exceed the  Aggregate Commitments, (iv) the Revolving Credit Exposure of any Lender shall not exceed its  Commitment and (v) the total Revolving Credit Exposure shall not exceed the Aggregate  Commitments.  (i) No L/C Issuer shall 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 such L/C Issuer from  issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any  request or directive (whether or not having the force of law) from any  Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or  request that such L/C Issuer refrain from, the issuance of letters of credit  generally or the Letter of Credit in particular or shall impose upon such L/C  Issuer with respect to the Letter of Credit any restriction, reserve or capital  requirement (for which such L/C Issuer is not otherwise compensated hereunder)  not in effect on the Closing Date, or shall impose upon such L/C Issuer any  unreimbursed loss, cost or expense which was not applicable on the Closing Date  and which such 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 such L/C Issuer applicable to letters of credit generally;  (C) except as otherwise agreed by Administrative Agent and such  L/C Issuer, the Letter of Credit is in an initial stated amount less than $10,000;  (D) any Lender is at that time a Defaulting Lender, unless such L/C  Issuer has entered into arrangements, including the delivery of Cash Collateral,  satisfactory to such L/C Issuer (in its sole discretion) with Borrower or such  Lender to eliminate such 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 such L/C Issuer has actual or potential  Fronting Exposure, as it may elect in its sole discretion; or  





 






4889-9733-0207 v.9     - 33 -    (E) the Letter of Credit contains any provisions for automatic  reinstatement of the stated amount after any drawing thereunder.  (ii) No L/C Issuer shall be under any obligation to amend any Letter of  Credit if (A) such 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 (12) months after the then current expiration date of such Letter of Credit)  and (ii) the Letter of Credit Expiration Date. Borrower shall Cash Collateralize each such Letter  of Credit with an expiration date beyond the Maturity Date in accordance with Section 2.03(o).  (e) Participations. 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 applicable L/C Issuer or the Lenders, such L/C Issuer hereby  grants to each Lender, and each Lender hereby acquires from such 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 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, extension, reinstatement or renewal of any Letter of  Credit or the occurrence and continuance of a Default or reduction or termination of the  Commitments.  In consideration and in furtherance of the foregoing, each Lender hereby absolutely,  unconditionally and irrevocably agrees to pay to Administrative Agent, for account of the  applicable L/C Issuer, such Lender’s Applicable Percentage of each L/C Disbursement made by  an L/C Issuer not later than 1:00 p.m. on the Business Day specified in the notice provided by  Administrative Agent to the Lenders pursuant to Section 2.03(f) until such L/C Disbursement is  reimbursed by Borrower or at any time after any reimbursement payment is required to be  refunded to 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  Lenders), and Administrative Agent shall promptly pay to the applicable L/C Issuer the amounts  so received by it from the Lenders. Promptly following receipt by Administrative Agent of any  payment from Borrower pursuant to Section 2.03(f), Administrative Agent shall distribute such  payment to the applicable L/C Issuer or, to the extent that the Lenders have made payments  pursuant to this clause (e) to reimburse such L/C Issuer, then to such Lenders and such L/C Issuer  as their interests may appear. Any payment made by a Lender pursuant to this clause (e) to  reimburse an L/C Issuer for any L/C Disbursement shall not constitute a Loan and shall not  relieve Borrower of its obligation to reimburse such L/C Disbursement.  Each 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 2.15, as a result of an assignment in  accordance with Section 10.06 or otherwise pursuant to this Agreement.  





 






4889-9733-0207 v.9     - 34 -    (f) Reimbursement. If an L/C Issuer shall make any L/C Disbursement in respect of  a Letter of Credit, Borrower shall reimburse such L/C Issuer in respect of such L/C Disbursement  by paying to Administrative Agent an amount equal to such L/C Disbursement not later than  12:00 noon on (i) the Business Day that 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 Borrower receives such notice, if such notice is not received prior to such time, provided that,  if such L/C Disbursement is not less than $1,000,000, Borrower may, subject to the conditions to  borrowing set forth herein, request in accordance with Section 2.02 that such payment be  financed with a Borrowing of Daily SOFR Rate Loans in an equivalent amount and, to the extent  so financed, Borrower’s obligation to make such payment shall be discharged and replaced by the  resulting Borrowing of Daily SOFR Rate Loans. If Borrower fails to make such payment when  due, Administrative Agent shall notify each Lender of the applicable L/C Disbursement, the  payment then due from Borrower in respect thereof (the “Unreimbursed Amount”) and such  Lender’s Applicable Percentage thereof. In such event, Borrower shall be deemed to have  requested a Borrowing of Daily SOFR Rate Loans to be disbursed on the date of payment by the  applicable L/C Issuer under a Letter of Credit in an amount equal to the Unreimbursed Amount,  without regard to the minimum and multiples specified in Section 2.02 for the principal amount  of Daily SOFR Rate Loans, but subject to the amount of the unutilized portion of the Aggregate  Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Loan  Notice). Any notice given by any L/C Issuer or 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. Borrower’s obligation to reimburse L/C Disbursements as  provided in Section 2.03(f) 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 Credit  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 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), any 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 a Letter  of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any  statement in such draft, demand, certificate 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 any L/C Issuer of any requirement that exists for such L/C  Issuer’s protection and not the protection of Borrower or any waiver by such L/C Issuer  which does not in fact materially prejudice 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;  





 






4889-9733-0207 v.9     - 35 -    (vi) any payment made by any L/C Issuer in respect of an otherwise  complying item presented after the date specified as the expiration date of, or the date by  which documents must be received under such Letter of Credit if presentation after such  date is authorized by the UCC or the ISP, as applicable;  (vii) payment by the applicable L/C Issuer under a Letter of Credit against  presentation of a draft, demand, certificate or other document that does not comply  strictly with the terms of such Letter of Credit; or any payment made by any 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; or  (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, Borrower’s  obligations hereunder.  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 Borrower’s instructions or other irregularity, Borrower will immediately notify the  applicable L/C Issuer. Borrower shall be conclusively deemed to have waived any such  claim against each L/C Issuer and its correspondents unless such notice is given as  aforesaid.  None of Administrative Agent, the Lenders, any 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 applicable 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 applicable L/C Issuer;  provided that the foregoing shall not be construed to excuse an L/C Issuer from liability  to Borrower to the extent of any direct damages (as opposed to consequential, special,  indirect, punitive or exemplary damages, claims in respect of which are hereby waived by  Borrower to the extent permitted by applicable Law) suffered by Borrower that are  caused by such 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 an L/C Issuer (as finally determined by a court of competent  jurisdiction), an L/C Issuer shall be deemed to have exercised care in each such  determination, and that:  (i) an 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;  





 






4889-9733-0207 v.9     - 36 -    (ii) an 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 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) an 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 an  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 Administrative Agent, the Lenders, any  L/C Issuer, or any of their Related Parties shall have any liability or responsibility by  reason of (i) 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, (ii) an L/C Issuer declining to take-up documents and make payment  (A) against documents that are fraudulent, forged, or for other reasons by which that it is  entitled not to honor or (B) following a Borrower’s waiver of discrepancies with respect  to such documents or request for honor of such documents or (iii) an 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 such L/C Issuer.  (h) Applicability of ISP; Limitation of Liability. Unless otherwise expressly  agreed by the applicable L/C Issuer and Borrower when a Letter of Credit is issued by it  (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP  shall apply to each standby Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall  be responsible to Borrower for, and no L/C Issuer’s rights and remedies against Borrower shall be  impaired by, any action or inaction of any 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 any L/C Issuer or the beneficiary is  located, the practice stated in the ISP, or in the decisions, opinions, practice statements, or official  commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade -  International Financial Services Association (BAFT-IFSA), or the Institute of International  Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.  (i) Each 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 each L/C Issuer shall have all of  the benefits and immunities (A) provided to Administrative Agent in Article IX with respect to  any acts taken or omissions suffered by such 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 such L/C  Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect  to such L/C Issuer.  





 






4889-9733-0207 v.9     - 37 -    (j) Letter of Credit Fees. Borrower shall pay to Administrative Agent for the  account of each Lender in accordance, subject to Section 2.15, with its Applicable Percentage a  Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable  Rate times the daily amount available to be drawn under such Letter of Credit. For purposes of  computing the daily amount available to be drawn under any Letter of Credit, the amount of such  Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall  be (i) due and payable on the tenth (10th) Business Day after the end of each March, June,  September and December, commencing with the first such date to occur after the issuance of such  Letter of Credit, on the Maturity Date and thereafter on demand and (ii) computed on a quarterly  basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount  available to be drawn under each Letter of Credit shall be computed and multiplied by the  Applicable Rate separately for each period during such quarter that such Applicable Rate was in  effect. Notwithstanding anything to the contrary contained herein, upon the request of the  Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the  Default Rate.  (k) Fronting Fee and Documentary and Processing Charges Payable to L/C  Issuers. Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting  fee with respect to each Letter of Credit, at the rate equal to one-tenth of one percent (0.100%)  per annum of the face amount of each Letter of Credit, computed on the daily amount available to  be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be  due and payable on the tenth (10th) Business Day after the end of each March, June,  September and December in respect of the most recently-ended quarterly period (or portion  thereof, in the case of the first payment), commencing with the first such date to occur after the  issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on  demand. For purposes of computing the daily amount available to be drawn under any Letter of  Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  In addition, Borrower shall pay directly to the applicable L/C Issuer for its own account the  customary issuance, presentation, amendment and other processing fees, and other standard costs  and charges, of such 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.  (l) 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. Such L/C Issuer shall promptly after such examination notify Administrative  Agent and Borrower in writing of such demand for payment if such 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 Borrower of its obligation to reimburse such L/C Issuer and the Lenders  with respect to any such L/C Disbursement.  (m) Interim Interest. If the L/C Issuer for any Letter of Credit shall make any L/C  Disbursement, then, unless 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 Borrower  reimburses such L/C Disbursement, at the rate per annum then applicable to Daily SOFR Rate  Loans; provided that if Borrower fails to reimburse such L/C Disbursement when due pursuant to  clause (f) of this Section 2.03, then Section 2.07(b) shall apply. Interest accrued pursuant to this  clause (m) shall be for account of such L/C Issuer, except that interest accrued on and after the  





 






4889-9733-0207 v.9     - 38 -    date of payment by any Lender pursuant to clause (f) of this Section 2.03 to reimburse such L/C  Issuer shall be for account of such Lender to the extent of such payment.  (n) Replacement of any L/C Issuer. Any L/C Issuer may be replaced at any time by  written agreement between Borrower, Administrative Agent, the replaced L/C Issuer and the  successor L/C Issuer. Administrative Agent shall notify the Lenders of any such replacement of  an L/C Issuer. At the time any such replacement shall become effective, Borrower shall pay all  unpaid fees accrued for the account of the replaced L/C Issuer pursuant to Section 2.03(j). 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 an 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.  (o) Cash Collateralization. If any Event of Default shall occur and be continuing,  on the Business Day that Borrower receives notice from Administrative Agent or the Required  Lenders (or, if the maturity of the Loans has been accelerated, 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 (o), Borrower shall immediately deposit into an account  established and maintained on the books and records of Administrative Agent (the “Collateral  Account”) an amount in cash equal to the Minimum Collateral Amount as of such date, 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 Borrower described in clause (f) of  Section 8.01. Such deposit shall be held by Administrative Agent as collateral for the payment  and performance of the obligations of 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), Borrower shall immediately  deposit into the Collateral Account an amount in cash equal to the Minimum Collateral Amount  as of such date; provided that Borrower shall Cash Collateralize each Letter of Credit that has an  expiration date beyond the Maturity Date at least thirty (30) days prior to the Maturity Date.  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  Administrative Agent and at 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 Administrative Agent to reimburse each  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 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 Borrower under this Agreement. If 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 Borrower within three  Business Days after all Events of Default have been cured or waived.  





 






4889-9733-0207 v.9     - 39 -    (p) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of  Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of,  a Subsidiary, Borrower shall be obligated to reimburse, indemnify and compensate the applicable  L/C Issuer hereunder for any and all drawings under such Letter of Credit as if such Letter of  Credit had been issued solely for the account of Borrower. 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. Borrower hereby acknowledges  that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of  Borrower, and that Borrower’s business derives substantial benefits from the businesses of such  Subsidiaries.  (q) 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.  (r) L/C Issuer Reporting Requirements. Each L/C Issuer shall, no later than the  fifth (5th) Business Day following the last day of each month, provide to Administrative Agent a  schedule of the Letters of Credit issued by it, in form and substance reasonably satisfactory to  Administrative Agent, showing the date of issuance of each Letter of Credit, the account party,  the original face amount (if any), the expiration date, and the reference number of any Letter of  Credit outstanding at any time during such month, and showing the aggregate amount (if any)  payable by Borrower to such L/C Issuer during such month pursuant to Section 2.03(j). Promptly  after the receipt of such schedule from each L/C Issuer, Administrative Agent shall provide to  Lenders and Borrower a summary of such schedules.  2.04 Prepayments.  (a) Borrower may, upon notice to Administrative Agent, at any time or from time to  time voluntarily prepay Loans in whole or in part without premium or penalty; provided that:  (i) such notice must be in a form reasonably acceptable to Administrative Agent and be received  by Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days prior to any date  of prepayment of Term SOFR Rate Loans or Daily SOFR Rate Loans and (B) on the date of  prepayment of Base Rate Loans; (ii) any prepayment of Term SOFR Rate Loans or Daily SOFR  Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in  excess thereof; and (iii) 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 Rate Loans are to be  prepaid, the Interest Period(s) of such Loans. Administrative Agent will promptly notify each  Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable  Percentage of such prepayment. If such notice is given by Borrower, Borrower shall make such  prepayment and the payment amount specified in such notice shall be due and payable on the date  specified therein. Any prepayment of a Loan shall be accompanied by all accrued interest on the  amount prepaid, together with, in the case of any Term SOFR Rate Loan or Daily SOFR Rate  Loan, any additional amounts required pursuant to Section 3.05. Subject to Section 2.15, each  such prepayment shall be applied to the Loans of the Lenders in accordance with their respective  Applicable Percentages.  (b) If for any reason the Total Outstandings at any time exceed the Aggregate  Commitments then in effect, Borrower shall immediately prepay Loans and/or Cash Collateralize  the L/C Obligations in an aggregate amount equal to such excess; provided, however, that  Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this  





 






4889-9733-0207 v.9     - 40 -    Section 2.04(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the  Aggregate Commitments then in effect.  (c) Borrower shall immediately prepay Loans and/or other Borrowing Base Debt as  necessary to maintain compliance with Section 7.11.  2.05 Termination or Reduction of Commitments. Borrower may, upon notice to  Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce  the Aggregate Commitments; provided that (i) any such notice shall be received by 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) Borrower shall not terminate or reduce the Aggregate Commitments if, after  giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed  the Aggregate Commitments. Administrative Agent will promptly notify the Lenders of any such notice  of termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate  Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage.  All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid  on the effective date of such termination.  2.06 Repayment of Loans. Borrower shall repay to the Lenders on the Maturity Date the  aggregate principal amount of Loans outstanding on such date.  2.07 Interest.  (a) Subject to the provisions of subsection (b) below: (i) each Daily SOFR Rate  Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to  Daily Simple SOFR for such Interest Period plus the Applicable Rate for SOFR; (ii) each Term  SOFR Rate Loan for any Interest Period shall bear interest on the outstanding principal amount  thereof at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate  for SOFR; and (iii) each Base Rate Loan shall bear interest on the outstanding principal amount  thereof at a rate per annum equal to the Base Rate for such Interest Period plus the Applicable  Rate for Base Rate Loans.  (b) (i) If any amount of principal of any Loan is not paid when due (without  regard to any applicable grace periods), 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 Borrower  under any Credit Document is not paid when due (without regard to any applicable grace  periods), 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 (other than as set forth in clauses 2.07(b)(i) and 2.07(b)(ii) above), Borrower shall  pay interest on the principal amount of all outstanding Obligations hereunder at a  fluctuating interest rate per annum at all times equal to the Default Rate to the fullest  extent permitted by applicable Laws.  





 






4889-9733-0207 v.9     - 41 -    (iv) Accrued and unpaid interest on past due amounts (including interest on  past due interest) shall be due and payable upon demand.  (c) Interest on each Loan shall be due and payable in arrears on each Interest  Payment Date applicable thereto and at such other times as may be specified herein. Interest  hereunder shall be due and payable in accordance with the terms hereof before and after  judgment, and before and after the commencement of any proceeding under any Debtor Relief  Law.   2.08 Fees. In addition to certain fees described in subsections (h) and (j) of Section 2.03:  (a) Commitment Fee. Borrower shall pay to Administrative Agent, for the account  of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the  Applicable Rate for Unused Fees times the actual daily amount by which the Aggregate  Commitments exceed the sum of (i) the Outstanding Amount of Loans and (ii) the Outstanding  Amount of L/C Obligations, subject to adjustment as provided in Section 2.15. 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 on the tenth  (10th) Business Day after the last day of each March, June, September and December in respect of  the most recently-ended quarterly period (or portion thereof, in the case of the first payment),  commencing with the first such date to occur after the Closing Date, and on the last day of the  Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is  any change in the Applicable Rate for Unused Fees during any quarter, the actual daily amount  shall be computed and multiplied by such Applicable Rate separately for each period during such  quarter that such Applicable Rate was in effect.   (b) Other Fees.  (i) Borrower shall pay to the Arranger and Administrative Agent for their  own respective accounts fees in the amounts and at the times specified in the Fee Letters.  Such fees shall be fully earned when paid and shall not be refundable for any reason  whatsoever.  (ii) 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.  2.09 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.  (a) All computations of interest for Base Rate Loans (including Base Rate Loans  determined by reference to the Term SOFR Rate) determined by using Bank of America’s prime  rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days  elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year  and actual days elapsed (which results in more fees or interest, as applicable, being paid than if  computed on the basis of a 365-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 2.11(a), bear interest for one day. Each determination by  Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all  purposes, absent manifest error.  





 






4889-9733-0207 v.9     - 42 -    (b) If, as a result of any restatement of or other adjustment to the financial statements  of Borrower or for any other reason, Borrower or the Lenders determine that (i) the Debt to  Capitalization Ratio as calculated by Borrower as of any applicable date was inaccurate and (ii) a  proper calculation of the Debt to Capitalization Ratio would have resulted in higher pricing for  such period, Borrower shall immediately and retroactively be obligated to pay to Administrative  Agent for the account of the applicable Lenders or the applicable L/C Issuer, as the case may be,  promptly on demand by Administrative Agent (or, after the occurrence of an actual or deemed  entry of an order for relief with respect to Borrower under the Bankruptcy Code of the United  States, automatically and without further action by Administrative Agent, any Lender or any L/C  Issuer), an amount equal to the excess of the amount of interest and fees that should have been  paid for such period over the amount of interest and fees actually paid for such period. This  paragraph shall not limit the rights of Administrative Agent, any Lender or any L/C Issuer, as the  case may be, under Section 2.03(c), 2.03(h) or 2.07(b) or under Article VIII. Borrower’s  obligations under this paragraph shall survive the termination of the Aggregate Commitments and  the repayment of all other Obligations hereunder.  2.10 Evidence of Debt.  (a) The Credit Extensions made by each Lender shall be evidenced by one or more  accounts or records maintained by such Lender and by Administrative Agent in the ordinary  course of business. The accounts or records maintained by Administrative Agent and each Lender  shall be conclusive absent manifest error of the amount of the Credit Extensions made by the  Lenders to 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 Borrower hereunder to  pay any amount owing with respect to the Obligations. In the event of any conflict between the  accounts and records maintained by any Lender and the accounts and records of Administrative  Agent in respect of such matters, the accounts and records of Administrative Agent shall control  in the absence of manifest error. Upon the request of any Lender made through Administrative  Agent, Borrower shall execute and deliver to such Lender (through 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) In addition to the accounts and records referred to in Section 2.10(a) above, each  Lender and 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.  In the event of any conflict between the accounts and records maintained by Administrative  Agent and the accounts and records of any Lender in respect of such matters, the accounts and  records of Administrative Agent shall control in the absence of manifest error.  2.11 Payments Generally; Administrative Agent’s Clawback.  (a) General. All payments to be made by 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 Borrower hereunder shall be made to  Administrative Agent, for the account of the respective Lenders to which such payment is owed,  at Administrative Agent’s Office in Dollars and in immediately available funds not later than  2:00 p.m. on the date specified herein. Administrative Agent will promptly distribute to each  Lender its Applicable Percentage (or other applicable share as provided herein) of such payment  in like funds as received by wire transfer to such Lender’s Lending Office. All payments received  by Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding  





 






4889-9733-0207 v.9     - 43 -    Business Day and any applicable interest or fee shall continue to accrue. If any payment to be  made by 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  Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing  of Loans that such Lender will not make available to Administrative Agent such Lender’s share  of such Borrowing, Administrative Agent may assume that such Lender has made such share  available on such date in accordance with Section 2.02 and may, in reliance upon such  assumption, make available to Borrower a corresponding amount. In such event, if a Lender has  not in fact made its share of the applicable Borrowing available to Administrative Agent, then the  applicable Lender and Borrower severally agree to pay to 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 Borrower to but excluding  the date of payment to 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 Administrative Agent in  accordance with banking industry rules on interbank compensation, plus any administrative,  processing or similar fees customarily charged by Administrative Agent in connection with the  foregoing, and (B) in the case of a payment to be made by Borrower, the interest rate applicable  to Daily SOFR Rate Loans. If Borrower and such Lender shall pay such interest to Administrative  Agent for the same or an overlapping period, Administrative Agent shall promptly remit to  Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its  share of the applicable Borrowing to Administrative Agent, then the amount so paid shall  constitute such Lender’s Loan included in such Borrowing. Any payment by Borrower shall be  without prejudice to any claim Borrower may have against a Lender that shall have failed to make  such payment to Administrative Agent.  (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless  Administrative Agent shall have received notice from Borrower prior to the date on which any  payment is due to Administrative Agent for the account of the Lenders or the L/C Issuers  hereunder that Borrower will not make such payment, Administrative Agent may assume that  Borrower has made such payment on such date in accordance herewith and may, in reliance upon  such assumption, distribute to the Lenders or the L/C Issuers, as the case may be, the amount due.   With respect to any payment that Administrative Agent makes for the account of the  Lenders or any L/C Issuer hereunder as to which 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) Borrower has not in fact made such  payment; (2) Administrative Agent has made a payment in excess of the amount so paid by  Borrower (whether or not then owed); or (3) Administrative Agent has for any reason otherwise  erroneously made such payment; then each of the Lenders or the applicable L/C Issuers, as the  case may be, severally agrees to repay to Administrative Agent forthwith on demand the  Rescindable Amount so distributed to such Lender or such L/C Issuer, in immediately available  funds with interest thereon, for each day from and including the date such Rescindable Amount is  distributed to it to but excluding the date of payment to Administrative Agent, at the greater of the  Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking  industry rules on interbank compensation.  A notice of Administrative Agent to any Lender or Borrower with respect to any amount owing  under this subsection (b) shall be conclusive, absent manifest error.  





 






4889-9733-0207 v.9     - 44 -    (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to  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 Borrower by  Administrative Agent because the conditions to the applicable Credit Extension set forth in  Article IV are not satisfied or waived in accordance with the terms hereof, 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 Loans, to fund participations in Letters of Credit and to make payments pursuant to  Section 10.04(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 10.04(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 10.04(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.  2.12 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff  or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans  made by it, or the participations in L/C Obligations held by it resulting in such Lender’s receiving  payment of a proportion of the aggregate amount of such Loans or participations and accrued interest  thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater  proportion shall (a) notify Administrative Agent of such fact, and (b) purchase (for cash at face value)  participations in the Loans and subparticipations in L/C Obligations of the other Lenders, or make such  other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the  Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their  respective Loans and other amounts owing them, provided that:  (i) if any such participations or subparticipations are purchased and all or  any portion of the payment giving rise thereto is recovered, such participations or  subparticipations shall be rescinded and the purchase price restored to the extent of such  recovery, without interest; and  (ii) the provisions of this Section shall not be construed to apply to (x) any  payment made by or on behalf of 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), (y) the application of Cash Collateral provided for in  Section 2.14, or (z) any payment obtained by a Lender as consideration for the  assignment of or sale of a participation in any of its Loans or subparticipations in L/C  Obligations to any assignee or participant, other than an assignment to Borrower or any  Affiliate thereof (as to which the provisions of this Section shall apply).  Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so  under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements  may exercise against such Credit Party rights of setoff and counterclaim with respect to such participation  as fully as if such Lender were a direct creditor of such Credit Party in the amount of such participation.  





 






4889-9733-0207 v.9     - 45 -    2.13 Increase in Commitments.  (a) Request for Increase. Provided there exists no Default, upon notice to  Administrative Agent (which shall promptly notify the Lenders), Borrower may request an  increase in the Aggregate Commitments (which increase may take the form of additional  Commitments under this Agreement or one or more term loan tranches) to an amount not  exceeding $1,750,000,000 (the “Maximum Increase Amount”); provided that (i) any such  request for an increase shall be in a minimum amount of $25,000,000, and (ii) Borrower may  make a maximum of three (3) such requests. At the time of sending such notice, Borrower (in  consultation with Administrative Agent) shall specify the time period within which each Lender  is requested to respond (which shall in no event be less than ten (10) Business Days from the date  of delivery of such notice to the Lenders).  (b) Lender Elections to Increase. Each Lender shall notify Administrative Agent  within such time period whether or not it agrees to increase its Commitment and, if so, whether  by an amount equal to, greater than, or less than its Applicable Percentage of such requested  increase. Any Lender not responding within such time period shall be deemed to have declined to  increase its Commitment.  (c) Notification by Administrative Agent; Additional Lenders. Administrative  Agent shall notify Borrower and each Lender of the Lenders’ responses to each request made  hereunder. To achieve the full amount of a requested increase and subject to the approval of  Administrative Agent and the L/C Issuers, Borrower may also invite additional Eligible  Assignees to become Lenders pursuant to a joinder agreement in form and substance reasonably  satisfactory to Administrative Agent and its counsel.  (d) Effective Date and Allocations. If the Aggregate Commitments are increased in  accordance with this Section, Administrative Agent and Borrower shall determine the effective  date (the “Increase Effective Date”) and the final allocation of such increase. Administrative  Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase and  the Increase Effective Date.  (e) Conditions to Effectiveness of Increase. As conditions precedent to such  increase, (i) Borrower shall (A) pay to Administrative Agent any fees payable pursuant to the Fee  Letters, and (B) deliver to Administrative Agent a certificate of each Credit Party dated as of the  Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of  such Credit Party (1) certifying and attaching the resolutions adopted by such Credit Party  approving or consenting to such increase, and (2) in the case of Borrower, certifying that, before  and after giving effect to such increase, (x) the representations and warranties contained in Article  V and the other Credit Documents are true and correct in all material respects (without  duplication of any materiality qualifiers set forth therein) on and as of the Increase Effective Date,  except to the extent that such representations and warranties specifically refer to an earlier date, in  which case they are true and correct in all material respects (without duplication of any  materiality qualifiers set forth therein) as of such earlier date, and except that for purposes of this  Section 2.13, the representations and warranties contained in subsections (a) and (b) of  Section 5.01 shall be deemed to refer to the most recent statements furnished pursuant to  subsections (a) and (b), respectively, of Section 6.01, and (y) no Default exists, and (ii) (A) upon  the reasonable request of any Lender made at least five (5) days prior to the Increase Effective  Date, 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 the Act, in each case  





 






4889-9733-0207 v.9     - 46 -    at least five (5) days prior to the Increase Effective Date and (B) at least five (5) days prior to the  Increase Effective Date, any Credit 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 Credit Party. Borrower shall prepay any  Loans outstanding on the Increase Effective Date (and pay any additional amounts required  pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any  revised Applicable Percentages arising from any nonratable increase in the Commitments under  this Section.   (f) Incremental Facility Amendment; Limitation. To the extent that the increase  of the Aggregate Commitments shall take the form of a new term loan tranche, such increase  shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement  executed by Borrower, each existing Lender and each additional Lender, if any, agreeing to  provide any portion of such increase, and Administrative Agent. An Incremental Facility  Amendment may, without the consent of any other Lenders, effect such amendments to the Credit  Documents as are determined by Administrative Agent to be reasonably necessary to include  such borrowing and payment terms as are customary for a term loan facility of this type and  otherwise to effect the provisions of this Section 2.13; provided, that any such Incremental  Facility Amendment may provide that if Borrower repays such new term loan tranche, Borrower  shall be able to enter into additional Incremental Facility Amendments or otherwise request an  increase in the Aggregate Commitments up to the Maximum Increase Amount subject to the  terms and conditions set forth in this Section 2.13.   (g) Conflicting Provisions. This Section shall supersede any provisions in  Section 2.12 or 10.01 to the contrary.  2.14 Cash Collateral.  (a) Obligation to Cash Collateralize. At any time that there shall exist a Defaulting  Lender, within one Business Day following the written request of Administrative Agent or any  L/C Issuer (with a copy to Administrative Agent), Borrower shall Cash Collateralize the L/C  Issuers’ 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. Borrower, and to the extent provided by any  Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of)  Administrative Agent, for the benefit of Administrative Agent, the L/C Issuers and the Lenders,  and agrees to maintain, a first priority security interest in all Cash Collateral provided under  Section 2.14(a) or Section 2.15(a)(ii), and all related 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 Administrative Agent determines that Cash Collateral  is subject to any right or claim of any Person other than Administrative Agent or an L/C Issuer as  herein provided, or that the total amount of such Cash Collateral is less than the Minimum  Collateral Amount, Borrower will, promptly upon demand by Administrative Agent, pay or  provide to Administrative Agent additional Cash Collateral in an amount sufficient to eliminate  such deficiency (determined in the case of Cash Collateral provided pursuant to clause (a) above,  after giving effect to Section 2.15(a)(iv) 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 at Bank of America. Borrower shall pay on demand therefor from time to  





 






4889-9733-0207 v.9     - 47 -    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, 2.04, 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 Defaulting Lender, any interest accrued on such obligation) and other obligations  for which the Cash Collateral was so provided, prior to any other application of such property as  may otherwise be provided for herein.  (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce  Fronting Exposure or to secure other obligations shall be released promptly following (i) the  elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including  by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its  assignee following compliance with Section 10.06(b)(vi))) or (ii) the determination by  Administrative Agent and the applicable L/C Issuer that there exists excess Cash Collateral;  provided, however, that (x) any such release shall be without prejudice to, and any disbursement  or other transfer of Cash Collateral shall be and remain subject to the other applicable provisions  of the Credit Documents, and (y) the Person providing Cash Collateral and Administrative Agent  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” and Section 10.01.  (ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees  or other amounts received by Administrative Agent for the account of such Defaulting  Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or  otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to  Section 10.08 shall be applied at such time or times as may be determined by  Administrative Agent as follows: first, to the payment of any amounts owing by such  Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro  rata basis of any amounts owing by such Defaulting Lender to the L/C Issuers hereunder;  third, to Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to such  Defaulting Lender in accordance with Section 2.14; fourth, as Borrower may request (so  long as no Default exists), to the funding of any Loan in respect of which such Defaulting  Lender has failed to fund its portion thereof as required by this Agreement, as determined  by Administrative Agent; fifth, if so determined by Administrative Agent and Borrower,  to be held in a deposit account and released pro rata in order to (x) satisfy such  Defaulting Lender’s potential future funding obligations with respect to Loans under this  Agreement and (y) Cash Collateralize the L/C Issuers’ 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  





 






4889-9733-0207 v.9     - 48 -    owing to the Lenders, the L/C Issuers as a result of any judgment of a court of competent  jurisdiction obtained by any Lender or any L/C Issuer against such Defaulting Lender as  a result of such Defaulting Lender’s breach of its obligations under this Agreement;  seventh, so long as no Default exists, to the payment of any amounts owing to Borrower  as a result of any judgment of a court of competent jurisdiction obtained by Borrower  against such Defaulting Lender as a result of such Defaulting Lender’s breach of its  obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise  directed by a court of competent jurisdiction; provided that if (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 are held by the Lenders pro rata in accordance with the  Commitments hereunder without giving effect to Section 2.15(a)(iv). Any payments,  prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or  held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to  this Section 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) No Defaulting Lender shall be entitled to receive any fee payable  under Section 2.08(a) for any period during which that Lender is a Defaulting  Lender (and Borrower shall not be required to pay any such fee that otherwise  would have been required to have been paid to that Defaulting Lender).  (B) Each Defaulting Lender shall be entitled to receive Letter of  Credit Fees for any period during which that Lender is a Defaulting Lender only  to the extent allocable to its Applicable Percentage of the stated amount of  Letters of Credit for which it has provided Cash Collateral pursuant to  Section 2.14.  (C) With respect to any Letter of Credit Fee not required to be paid  to any Defaulting Lender pursuant to clause (A) or (B) above, Borrower shall  (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise  payable to such Defaulting Lender with respect to such Defaulting Lender’s  participation in L/C Obligations that has been reallocated to such Non-Defaulting  Lender pursuant to clause (iv) below, (y) pay to the applicable L/C Issuer the  amount of any such fee otherwise payable to such Defaulting Lender to the  extent allocable to such L/C Issuer’s to such Defaulting Lender, and (z) not be  required to pay the remaining amount of any such fee.  (iv) Reallocation of Applicable Percentages to Reduce Fronting  Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations  shall be reallocated among the Non-Defaulting Lenders in accordance with their  respective Applicable Percentages (calculated without regard to such Defaulting Lender’s  Commitment) but only to the extent that such reallocation does not cause the aggregate  Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non- 





 






4889-9733-0207 v.9     - 49 -    Defaulting Lender’s Commitment. Subject to Section 10.21, no reallocation hereunder  shall constitute a waiver or release of any claim of any party hereunder against a  Defaulting Lender arising from that Lender having become a Defaulting Lender,  including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting  Lender’s increased exposure following such reallocation.  (v) Cash Collateral. If the reallocation described in Section 2.15(a)(iv)  above cannot, or can only partially, be effected, Borrower shall, without prejudice to any  right or remedy available to it hereunder or under applicable Law, Cash Collateralize the  L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in  Section 2.14.  (b) Defaulting Lender Cure. If Borrower, Administrative Agent and the L/C Issuers  agree in writing that a Lender is no longer a Defaulting Lender, 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 Administrative Agent may determine to  be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be  held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (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 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 Letters of Credit. So long as any Lender is a Defaulting Lender, no L/C  Issuer shall be required to issue, extend, increase, reinstate or renew any Letter of Credit unless it  is satisfied that it will have no Fronting Exposure after giving effect thereto.  Article III. Taxes, Yield Protection and Illegality  3.01 Taxes.  (a) Defined Terms. For purposes of this Section 3.01, the term “applicable Law”  includes FATCA.  (b) Payments Free of Taxes. Any and all payments by or on account of any  obligation of any Credit Party under any Credit Document shall be made without deduction or  withholding for any Taxes, except as required by applicable Law. If any applicable Law (as  determined in the good faith discretion of an applicable Withholding Agent) requires the  deduction or withholding of any Tax from any such payment by a Withholding Agent, then the  applicable Withholding Agent shall be entitled to make such deduction or withholding and shall  timely pay the full amount deducted or withheld to the relevant Governmental Authority in  accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by  the applicable Credit Party shall be increased as necessary so that after such deduction or  withholding has been made (including such deductions and withholdings applicable to additional  sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the  sum it would have received had no such deduction or withholding been made.  





 






4889-9733-0207 v.9     - 50 -    (c) Payment of Other Taxes by Borrower. The Credit Parties shall timely pay to  the relevant Governmental Authority in accordance with applicable Law, or at the option of  Administrative Agent timely reimburse it for the payment of, any Other Taxes.  (d) Indemnification by Borrower. Each of the Credit Parties shall indemnify each  Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes  (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under  this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from  a payment to such Recipient and any reasonable expenses arising therefrom or with respect  thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by  the relevant Governmental Authority. A certificate prepared in good faith setting forth in  reasonable detail the calculation of the amount of such payment or liability delivered to Borrower  by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf  or on behalf of a Lender, shall be conclusive absent manifest error.  (e) Indemnification by the Lenders. Each Lender shall severally indemnify  Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes  attributable to such Lender (but only to the extent that any Credit Party has not already  indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation  of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with  the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and  (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by  Administrative Agent in connection with any Credit 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 Administrative Agent shall be conclusive  absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply  any and all amounts at any time owing to such Lender under any Credit Document or otherwise  payable by Administrative Agent to the Lender from any other source against any amount due to  Administrative Agent under this clause (e).  (f) Evidence of Payments. As soon as practicable after any payment of Taxes by  Borrower to a Governmental Authority as provided in this Section 3.01, Borrower shall deliver to  Administrative Agent the original or a certified copy of a receipt issued by such Governmental  Authority evidencing such payment, a copy of any return required by Laws to report such  payment or other evidence of such payment reasonably satisfactory to Administrative Agent.  (g) 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 Credit Document shall deliver  to Borrower and Administrative Agent, at the time or times reasonably requested by  Borrower or Administrative Agent, such properly completed and executed documentation  reasonably requested by Borrower or Administrative Agent as will permit such payments  to be made without withholding or at a reduced rate of withholding. In addition, any  Lender, if reasonably requested by Borrower or Administrative Agent, shall deliver such  other documentation prescribed by applicable Law or reasonably requested by Borrower  or Administrative Agent as will enable Borrower or 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  





 






4889-9733-0207 v.9     - 51 -    documentation set forth in Section 3.01(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be  required if in the Lender’s reasonable judgment such completion, execution or  submission would subject such Lender to any material unreimbursed cost or expense or  would materially prejudice the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that  Borrower is a U.S. Person,  (A) any Lender that is a U.S. Person shall deliver to Borrower and  Administrative Agent on or prior to the date on which such Lender becomes a  Lender under this Agreement (and from time to time thereafter upon the  reasonable request of Borrower or 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 Borrower and Administrative Agent (in such number of copies as  shall be requested by the recipient) on or prior to the date on which such Foreign  Lender becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of Borrower or 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 Credit 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 Credit 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 F-1 to the effect that  such Foreign Lender is not a “bank” within the meaning of  Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of  Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a  “controlled foreign corporation” described in Section 881(c)(3)(C) of the  Code (a “U.S. Tax Compliance Certificate”) and (y) executed 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 F-2  or Exhibit F-3, IRS Form W-9, and/or other certification documents  from each beneficial owner, as applicable; provided that if the Foreign  





 






4889-9733-0207 v.9     - 52 -    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 F-4 on behalf of each such direct and  indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to Borrower and Administrative Agent (in such number of copies as  shall be requested by the recipient) on or prior to the date on which such Foreign  Lender becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of Borrower or Administrative Agent), executed  copies of any other form prescribed by applicable Law as a basis for claiming  exemption from or a reduction in U.S. federal withholding Tax, duly completed,  together with such supplementary documentation as may be prescribed by  applicable Law to permit Borrower or Administrative Agent to determine the  withholding or deduction required to be made; and  (D) if a payment made to a Lender under any Credit 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 Borrower or Administrative Agent at the  time or times prescribed by law and at such time or times reasonably requested  by Borrower or Administrative Agent such documentation prescribed by  applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code)  and such additional documentation reasonably requested by Borrower or  Administrative Agent as may be necessary for Borrower or Administrative Agent  to comply with their obligations under FATCA and to determine that such  Lender has complied with such Lender’s obligations under FATCA or to  determine the amount to deduct and withhold from such payment. Solely for  purposes of this clause (D), “FATCA” shall include any amendments made to  FATCA after the date of this Agreement.  (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 Borrower and  Administrative Agent in writing of its legal inability to do so.  (h) Treatment of Certain Refunds. Unless required by Applicable Laws, at no time  shall Administrative Agent have any obligation to file for or otherwise pursue on behalf of a  Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any  refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C  Issuer, as the case may be. If any Recipient determines that it has received a refund of any Taxes  as to which it has been indemnified by any Credit Party or with respect to which any Credit Party  has paid additional amounts pursuant to this Section 3.01, it shall pay to the Credit Party an  amount equal to such refund (but only to the extent of indemnity payments made, or additional  amounts paid, by a Credit Party under this Section 3.01 with respect to the Taxes giving rise to  such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and  without interest (other than any interest paid by the relevant Governmental Authority with respect  to such refund), provided that the Credit Party, upon the request of the Recipient, agrees to repay  the amount paid over to the Credit Party (plus any penalties, interest or other charges imposed by  





 






4889-9733-0207 v.9     - 53 -    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 (h), in no event will the applicable Recipient be required to pay any amount to the  Credit Party pursuant to this clause (h) 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 subsection 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  Credit Party or any other Person.  (i) Survival. Each party’s obligations under this Section 3.01 shall survive the  resignation or replacement of Administrative Agent or any assignment of rights by, or the  replacement of, a Lender or an L/C Issuer, the termination of the Commitments and the  repayment, satisfaction or discharge of all other Obligations.  3.02 Illegality. If any Lender reasonably determines that any Law has made it unlawful, or  that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to  perform any of its obligations hereunder or make, maintain or fund Loans whose interest is determined by  reference to SOFR, Term SOFR, or Daily Simple SOFR, or to determine or charge interest rates based  upon SOFR, Term SOFR or Daily Simple SOFR, or any Governmental Authority has imposed material  restrictions on the authority of such Lender to engage in reverse repurchase of U.S. Treasury securities  transactions of the type included in the determination of SOFR, then, on notice thereof by such Lender to  Borrower through Administrative Agent, (a) any obligation of such Lender to make or continue either  Term SOFR Rate Loans or Daily SOFR Rate Loans shall be suspended and (b) if such notice asserts the  illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined  by reference to the 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 Administrative Agent without  reference to the Term SOFR component of the Base Rate, in each case until such Lender notifies  Administrative Agent and Borrower that the circumstances giving rise to such determination no longer  exist. Upon receipt of such notice, (i) Borrower shall, upon demand from such Lender (with a copy to  Administrative Agent), prepay (without penalty or premium other than amounts payable pursuant to  Section 3.05) or, if applicable, convert all Term SOFR Rate Loans of such Lender to Base Rate Loans  (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be  determined by 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 Rate Loans to such day, or immediately, if such Lender may not lawfully continue to  maintain such Term SOFR Rate Loans, (ii) Borrower shall, upon demand from such Lender (with a copy  to Administrative Agent), immediately prepay or, if applicable, convert all Daily SOFR Rate Loans of  such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if  necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term  SOFR component of the Base Rate), and (iii) if such notice asserts the illegality of such Lender  determining or charging interest rates based upon SOFR, Administrative Agent shall during the period of  such suspension compute the Base Rate applicable to such Lender without reference to Term SOFR  component thereof until 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, 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.   





 






4889-9733-0207 v.9     - 54 -    (a) If, in connection with any request for a Term SOFR Rate Loan or Daily SOFR  Rate Loan, or a conversion of Daily SOFR Rate Loans to Term SOFR Rate Loans or a  continuation of any of such advances, as applicable, (a) Administrative Agent determines (which  determination shall be conclusive absent manifest error) that (i) no Successor Rate has been  determined in accordance with Section 3.03(b), and the circumstances under Section 3.03(b)(i) or  the Scheduled Unavailability Date has occurred, or (ii) adequate and reasonable means do not  otherwise exist for determining Term SOFR for any requested Interest Period with respect to a  proposed Term SOFR Rate Loan or in connection with an existing or proposed Base Rate Loan,  or (iii) adequate and reasonable means do not otherwise exist for determining Daily Simple SOFR  in connection with an existing or proposed Daily SOFR Rate Loan, or (b) Administrative Agent  or Required Lenders determine that for any reason that Term SOFR for any requested Interest  Period or Daily Simple SOFR with respect to a proposed advance does not adequately and fairly  reflect the cost to such Lenders of funding such advance, Administrative Agent will promptly so  notify Borrower and each Lender. Thereafter, (x) the obligation of Lenders to make or maintain  Term SOFR Rate Loans, Daily SOFR Rate Loans, or to convert Daily SOFR Rate Loans to Term  SOFR Rate Loans, shall be suspended (to the extent of the affected Term SOFR Rate Loans,  Daily SOFR Rate 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 Administrative Agent (or, in the case of a determination by Required Lenders  described in Section 3.03(b), until Administrative Agent upon instruction of Required Lenders)  revokes such notice. Upon receipt of such notice, (1) Borrower may revoke any pending request  for a Borrowing of, or conversion to, or continuation of Term SOFR Rate Loans or Daily SOFR  Rate Loans (to the extent of the affected Term SOFR Rate Loans, Daily SOFR Rate Loans, or  Interest Periods) or, failing that, will be deemed to have converted such request into a request for  a Borrowing of Base Rate Loans in the amount specified therein, (2) any outstanding Term SOFR  Rate Loans shall be deemed to have been converted to Base Rate Loans immediately at the end of  their respective applicable Interest Period, and (3) any outstanding Daily SOFR Rate Loans shall  immediately be deemed to have been converted to Base Rate Loans.   (b) Notwithstanding anything to the contrary in this Agreement or any other Credit  Documents, if Administrative Agent determines (which determination shall be conclusive absent  manifest error), or Borrower or Required Lenders notify Administrative Agent (with, in the case  of Required Lenders, a copy to Borrower) that Borrower or Required Lenders (as applicable)  have determined, that:  (i) if adequate and reasonable means do not exist for ascertaining one (1)  month, three (3) month and six (6) month interest periods of Term SOFR, including  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 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 (1)  month, three (3) month and six (6) 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 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 Administrative Agent, that will continue to provide  such interest periods of Term SOFR after such specific date (the latest date on which one  





 






4889-9733-0207 v.9     - 55 -    (1) month, three (3) month and six (6) 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 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 (b) above, no later  than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Credit  Document with Daily Simple SOFR for any payment period for interest calculated that can be determined  by Administrative Agent, in each case, without any amendment to, or further action or consent of any  other party to, this Agreement or any other Credit Document (the “Successor Rate”). If Daily Simple  SOFR is not available or ascertainable, then the Base Rate shall replace Daily Simple SOFR  hereunder  and under any Credit Document and shall be deemed to be the Successor Rate.  If the Successor Rate is Daily Simple SOFR or the Base Rate, all interest payments will be  payable on a monthly basis.  Notwithstanding anything to the contrary herein, (i) if 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 clauses (a) or (b) above have occurred with respect to Daily  Simple SOFR or the Successor Rate then in effect, then in each case, Administrative Agent and Borrower  may amend this Agreement solely for the purpose of replacing Term SOFR, Daily Simple SOFR, and/or  any then current Successor Rate in accordance with this Section 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 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 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 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 (5th) Business Day after Administrative Agent  shall have posted such proposed amendment to all Lenders and Borrower unless, prior to such time,  Lenders comprising the Required Lenders have delivered to Administrative Agent written notice that such  Required Lenders object to such amendment.  Administrative Agent will promptly (in one or more notices) notify 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 Administrative Agent, such Successor  Rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent.  Notwithstanding anything else herein, if at any time any Successor Rate as so determined would  otherwise be less than zero percent (0.0%), the Successor Rate will be deemed to be zero percent (0.0%)  for the purposes of this Agreement and the other Credit Documents.   In connection with the implementation of a Successor Rate, 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 Credit Document, any amendments implementing such Conforming Changes will  





 






4889-9733-0207 v.9     - 56 -    become effective without any further action or consent of any other party to this Agreement; provided  that, with respect to any such amendment effected, Administrative Agent shall post each such amendment  implementing such Conforming Changes to 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:  (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 any 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 any L/C Issuer any other condition, cost or  expense affecting this Agreement or 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 such 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 such L/C Issuer hereunder (whether of  principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, Borrower  will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will  compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or  reduction suffered.  (b) Capital Requirements. If any Lender or any L/C Issuer determines that any  Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or  such Lender’s or such 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 such  L/C Issuer’s capital or on the capital of such Lender’s or such 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 held by, such Lender, or the Letters of Credit issued by  such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or  such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into  consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or  such L/C Issuer’s holding company with respect to capital adequacy), then from time to time  Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount  or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C  Issuer’s holding company for any such reduction suffered.  (c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer  prepared in good faith setting forth in reasonable detail the calculation of the amount or amounts  





 






4889-9733-0207 v.9     - 57 -    necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may  be, as specified in subsection (a) or (b) of this Section and delivered to Borrower shall be  conclusive absent manifest error. Borrower shall pay such Lender or such 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 any L/C Issuer  to demand compensation pursuant to the foregoing provisions of this Section 3.04 or  Section 3.01(c) shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to  demand such compensation, provided that Borrower shall not be required to compensate a Lender  or an L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs  incurred or reductions suffered or Indemnified Taxes more than nine months prior to the date that  such Lender or such L/C Issuer, as the case may be, notifies Borrower of the Change in Law  giving rise to such increased costs or reductions or such Indemnified Taxes and of such Lender’s  or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law  giving rise to such increased costs or reductions or such Indemnified Taxes is retroactive, then the  nine-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 Administrative  Agent) from time to time, 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 bearing  interest at Term SOFR 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 Borrower (for a reason other than the failure of such Lender to  make an advance at Term SOFR) to prepay, borrow, continue or convert any Loan on the date or  in the amount notified by Borrower; or  (c) any assignment of Loans bearing interest at Term SOFR other than the last day of  the Interest Period therefor as a result of a request by Borrower;  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 bearing interest at Term SOFR or from fees  payable to terminate the deposits from which such funds were obtained. Borrower shall also pay any  customary administrative fees charged by such Lender in connection with the foregoing.  The amounts payable under this Section 3.05 shall never be less than zero or greater than is permitted by  applicable Law. For the avoidance of doubt, no amounts will be owing under this Section in connection  with the prepayment of any Daily SOFR Rate Loan or Base Rate Loan (if any).  3.06 Mitigation Obligations; Replacement of Lenders.  (a) Designation of a Different Lending Office. Each Lender may make any Credit  Extension to Borrower through any Lending Office, provided that the exercise of this option shall  not affect the obligation of Borrower to repay the Credit Extension in accordance with the terms  of this Agreement. If any Lender requests compensation under Section 3.04, or requires Borrower  to pay any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer, or any  Governmental Authority for the account of any Lender or any L/C Issuer pursuant to  





 






4889-9733-0207 v.9     - 58 -    Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of  Borrower such Lender or such 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 such 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 such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would  not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be.  Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any  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 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), Borrower may replace such Lender in  accordance with Section 10.13.  3.07 Survival. All of Borrower’s obligations under this Article III shall survive termination of  the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of  Administrative Agent.  Article IV. Conditions Precedent To Credit Extensions  4.01 Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each  Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions  precedent:  (a) Administrative Agent’s receipt of the following, each of which shall be originals  or telecopies (followed promptly by originals) unless otherwise specified, each properly executed  by a Responsible Officer of the signing Credit Party, each dated the Closing Date (or, in the case  of certificates of governmental officials, a recent date before the Closing Date) and each in form  and substance reasonably satisfactory to Administrative Agent and each of the Lenders:  (i) executed counterparts of this Agreement and the Guaranty, sufficient in  number for distribution to Administrative Agent, each Lender and Borrower;  (ii) a Note executed by Borrower in favor of each Lender requesting a Note;  (iii) such certificates of resolutions or other action, incumbency certificates  and/or other certificates of Responsible Officers of each Credit Party as Administrative  Agent may reasonably require evidencing the identity, authority and capacity of each  Responsible Officer thereof authorized to act as a Responsible Officer in connection with  this Agreement and the other Credit Documents to which such Credit Party is a party;  (iv) such documents and certifications as Administrative Agent may  reasonably require to evidence that each Credit Party is duly organized or formed, and  that each Credit Party is validly existing, in good standing and qualified to engage in  business in its jurisdiction of organization or formation;  





 






4889-9733-0207 v.9     - 59 -    (v) favorable opinions of Sidley Austin LLP, Ballard, Rawson, Jorgensen  and the General Counsel of Borrower, each as counsel to the Credit Parties, addressed to  Administrative Agent, each L/C Issuer, and each Lender, in form and substance  reasonably satisfactory to Administrative Agent;   (vi) a certificate of a Responsible Officer of each Credit Party either  (A) attaching copies of all consents, licenses and approvals required in connection with  the execution, delivery and performance by such Credit Party and the validity against  such Credit Party of the Credit Documents to which it is a party, and such consents,  licenses and approvals shall be in full force and effect, or (B) stating that no such  consents, licenses or approvals are so required;  (vii) a certificate signed by a Responsible Officer of Borrower certifying:  (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and  (B) that there has been no event or circumstance since the date of the Audited Financial  Statements that has had or could be reasonably expected to have, either individually or in  the aggregate, a Material Adverse Effect;   (viii) a duly completed Compliance Certificate (prepared on a pro forma basis  to take into account the Loans made on the Closing Date) as of the last day of the fiscal  quarter of Borrower ended on March 31, 2022, signed by a Responsible Officer of  Borrower; and  (ix) such other assurances, certificates, documents, consents or opinions as  Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.  (b) There shall not have occurred since December 31, 2021 any event or condition  that has had or could reasonably be expected, either individually or in the aggregate, to have a  Material Adverse Effect.  (c) There shall not exist any action, suit, investigation, or proceeding pending or, to  the knowledge of any Credit Party, threatened in any court or before any arbitrator or  Governmental Authority related in any way to the Obligations or that could reasonably be  expected to have a Material Adverse Effect.  (d) Any fees required to be paid on or before the Closing Date shall have been paid.  (e) Unless waived by Administrative Agent, Borrower shall have paid all fees,  charges and disbursements of counsel to Administrative Agent (directly to such counsel if  requested by Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus  such additional amounts of such fees, charges and disbursements as shall constitute its reasonable  estimate of such fees, charges and disbursements incurred or to be incurred by it through the  closing proceedings (provided that such estimate shall not thereafter preclude a final settling of  accounts between Borrower and Administrative Agent).  (f) KYC Information:   (i) Upon the reasonable request of any Lender made at least ten (10) days  prior to the Closing Date, Borrower shall have provided to such Lender the  documentation and other information so requested in connection with applicable “know  





 






4889-9733-0207 v.9     - 60 -    your customer” and anti-money-laundering rules and regulations, including the Act, in  each case at least five (5) days prior to the Closing Date.   (ii) If Borrower qualifies as a “legal entity customer” under the Beneficial  Ownership Regulation, Borrower shall deliver a Beneficial Ownership Certification at  least five (5) days prior to the Closing Date.  Without limiting the generality of the provisions of the last paragraph of Section 9.03, 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 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 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 Rate Loans) is subject to the following conditions precedent:  (a) The representations and warranties of Borrower and each other Credit Party  contained in Article V or any other Credit Document, or which are contained in any document  furnished at any time under or in connection herewith or therewith, shall be true and correct in all  material respects (without duplication of any materiality qualifiers set forth therein) on and as of  the date of such Credit Extension, except to the extent that such representations and warranties  specifically refer to an earlier date, in which case they shall be true and correct in all material  respects (without duplication of any materiality qualifiers set forth therein) as of such earlier date,  and except that for purposes of this Section 4.02, the representations and warranties contained in  subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent statements  furnished pursuant to subsections (a) and (b), respectively, of Section 6.01.  (b) No Default shall exist, or would result from such proposed Credit Extension or  from the application of the proceeds thereof.  (c) Administrative Agent and, if applicable, the applicable L/C Issuer shall have  received a Request for Credit Extension in accordance with the requirements hereof.  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 Rate Loans) submitted by 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.  





 






4889-9733-0207 v.9     - 61 -    Article V. Representations and Warranties  Borrower represents and warrants to Administrative Agent, L/C Issuers, and the Lenders that:  5.01 Financial Condition.  (a) The financial statements delivered to Administrative Agent, L/C Issuers, and the  Lenders prior to the Closing Date and pursuant to Sections 6.01(a) and (b): (i) have been  prepared in accordance with GAAP; and (ii) present fairly the consolidated financial condition,  results of operations and cash flows of Borrower and its Subsidiaries as of such date and for such  periods.  (b) Since December 31, 2021, there has been no sale, transfer or other Disposition by  any Credit Party of any material part of the business or property of the Credit Parties, taken as a  whole, and no purchase or other acquisition by any of them of any business or property (including  any Equity Interest of any other Person) material in relation to the consolidated financial  condition of the Credit Parties taken as a whole, in each case which is not (i) reflected in the most  recent financial statements delivered to the Lenders pursuant to Section 6.01 or in the notes  thereto or (ii) otherwise permitted by the terms of this Agreement and communicated to  Administrative Agent.  5.02 No Material Change. As of the Closing Date, since December 31, 2021, there has been  no development or event relating to or affecting a Credit Party which has had or could be reasonably  expected to have a Material Adverse Effect.  5.03 Organization and Good Standing. Each Credit Party (a) is a corporation, partnership or  limited liability company duly organized, validly existing and in good standing under the laws of the state  (or other jurisdiction) of its organization, (b) is duly qualified and in good standing as a foreign entity and  authorized to do business in every jurisdiction unless the failure to be so qualified, in good standing or  authorized could not be reasonably expected to have a Material Adverse Effect and (c) has the requisite  power and authority to own its properties and to carry on its business as now conducted and as proposed  to be conducted.  5.04 Due Authorization. Each Credit Party (a) has the requisite power and authority to  execute, deliver and perform this Agreement and the other Credit Documents to which it is a party and to  incur the obligations herein and therein provided for and (b) is duly authorized, and has been authorized  by all necessary action, to execute, deliver and perform this Agreement and the other Credit Documents to  which it is a party.  5.05 No Conflicts. Neither the execution and delivery of the Credit Documents, nor the  consummation of the transactions contemplated therein, nor performance of and compliance with the  terms and provisions thereof by such Credit Party will (a) violate or conflict with any provision of its  Organization Documents, (b) violate, contravene or materially conflict with any Law (including  Regulation T, U or X), order, writ, judgment, injunction, decree or permit applicable to it, which, in the  case of any violation, contravention or conflict with any order, writ, judgment, injunction, decree or  permit, could reasonably be expected to have a Material Adverse Effect, (c) violate, contravene or conflict  with contractual provisions of, or cause an event of default under, any indenture, loan agreement,  mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it  may be bound, the violation, contravention or conflict of which, or event of default under, could be  reasonably expected to have a Material Adverse Effect, or (d) result in or require the creation of any Lien  





 






4889-9733-0207 v.9     - 62 -    (other than those contemplated in or created in connection with the Credit Documents) upon or with  respect to its properties.  5.06 Consents. Except for consents, approvals and authorizations which have been obtained,  no consent, approval, authorization or order of, or filing, registration or qualification with, any court or  Governmental Authority or third party in respect of any Credit Party is required in connection with the  execution, delivery or performance of this Agreement or any of the other Credit Documents by such  Credit Party.  5.07 Enforceable Obligations. This Agreement and the other Credit Documents have been  duly executed and delivered and constitute legal, valid and binding obligations of each Credit Party  enforceable against such Credit Party in accordance with their respective terms, except as may be limited  by bankruptcy, insolvency, reorganization or moratorium laws or similar laws relating to or affecting  creditors’ rights generally or by general equitable principles.  5.08 No Default. No Credit Party is in default in any respect under any contract, lease, loan  agreement, indenture, mortgage, security agreement or other agreement or obligation to which it is a party  or by which any of its properties is bound which default could be reasonably expected to have a Material  Adverse Effect. No Default has occurred or exists except as previously disclosed in writing to the  Lenders.  5.09 Liens. The assets of the Credit Parties are not subject to any Liens other than Permitted  Liens, which, individually or in the aggregate, could be reasonably expected to have a Material Adverse  Effect.  5.10 Indebtedness. The Credit Parties have no Indebtedness except (a) as disclosed in the  financial statements referenced in Section 5.01, (b) as set forth on Schedule 5.10, and (c) as otherwise  permitted by this Agreement.  5.11 Litigation. Except as set forth on Schedule 5.11, there are no actions, suits or legal,  equitable, arbitration or administrative proceedings, pending or, to the knowledge of any Credit Party,  threatened against any Credit Party which, if adversely determined, could be reasonably expected to have  a Material Adverse Effect.  5.12 Taxes. Each Credit Party has filed, or caused to be filed, all material tax returns (federal,  state, local and foreign) required to be filed and paid (a) all amounts of taxes shown thereon to be due and  payable (including interest and penalties) and (b) all other taxes, fees, assessments and other  governmental charges (including mortgage recording taxes, documentary stamp taxes and intangibles  taxes) that are due and payable by it, except for such taxes (i) which are not yet delinquent or (ii) that are  being contested in good faith and by proper proceedings, and against which adequate reserves are being  maintained in accordance with GAAP. To the knowledge of the Credit Parties, there are no material tax  assessments (including interest and penalties) claimed to be due against any of them by any  Governmental Authority.  5.13 Compliance with Law. Each Credit Party is in material compliance with its  Organization Documents and all material Laws (including Environmental Laws) applicable to it, or to its  properties.   5.14 ERISA.  





 






4889-9733-0207 v.9     - 63 -    (a) Except as would not have or be reasonably expected to have a Material Adverse  Effect:  (i) During the five-year period prior to the date on which this representation  is made or deemed made: (A) no ERISA Event has occurred, and, to the knowledge of  the Credit Parties, no event or condition has occurred or exists as a result of which any  ERISA Event could reasonably be expected to occur, with respect to any Plan; (B) there  have been no unpaid contributions required under Section 303 of ERISA and Section 430  of the Code with respect to any Single Employer Plan, or, with respect to any Credit  Party’s, any Subsidiary’s, or any ERISA Affiliate’s contribution obligations only, under  Section 304 or 305 of ERISA and Section 431 or 432 of the Code with respect to any  Multiemployer Plan; (C) each Plan has been maintained, operated, and funded in  compliance with its own terms and in material compliance with the provisions of ERISA,  the Code, and any other applicable federal or state laws; and (D) no lien in favor of the  PBGC or a Plan with respect to any of the assets of any Credit Party, any of its  Subsidiaries or any ERISA Affiliate has arisen or is reasonably likely to arise on account  of any Pension Plan.  (ii) The actuarial present value of all “benefit liabilities” (within the meaning  of Section 4001 of ERISA) under each Single Employer Plan (determined utilizing the  actuarial assumptions used to fund such Plans), whether or not vested, did not, as of the  last annual valuation date prior to the date on which this representation is made or  deemed made, exceed the fair market current value as of such date of the assets of such  Plan allocable to such accrued liabilities.  (iii) Neither Borrower, nor any of its Subsidiaries, nor any ERISA Affiliate  has incurred, or, to the knowledge of such parties, are reasonably expected to incur, any  withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.  Neither Borrower, nor any of its Subsidiaries, nor any ERISA Affiliate has received any  notification pursuant to ERISA that any Multiemployer Plan is in reorganization (within  the meaning of Section 4241 of ERISA), is insolvent (within the meaning of  Section 4245 of ERISA), or has been terminated (within the meaning of Title IV of  ERISA), and, to the best knowledge of such parties, no Multiemployer Plan is reasonably  expected to be in reorganization, insolvent, or terminated.  (iv) No nonexempt prohibited transaction (within the meaning of Section 406  of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has occurred  with respect to a Plan which has subjected or is reasonably expected to subject Borrower  or any of its Subsidiaries or any ERISA Affiliate to any liability under Sections 406, 409,  502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other  instrument pursuant to which Borrower or any of its Subsidiaries or any ERISA Affiliate  has agreed or is required to indemnify any person against any such liability.  (v) The present value of the liability of Borrower and its Subsidiaries and  each ERISA Affiliate for post-retirement welfare benefits to be provided to their current  and former employees under Plans which are welfare benefit plans (as defined in  Section 3(1) of ERISA), net of all assets under all such Plans allocable to such benefits,  are reflected on the Financial Statements in accordance with FASB 106.  





 






4889-9733-0207 v.9     - 64 -    (vi) Each Plan which is a welfare plan (as defined in Section 3(1) of ERISA)  to which Sections 601-609 of ERISA and Section 4980B of the Code apply has been  administered in material compliance with such sections.  (b) Neither Borrower nor any of its Subsidiaries is (i) an employee benefit plan  subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code, (iii) an  entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the  Code or (iv) a “governmental plan” within the meaning of ERISA.  5.15 Subsidiaries. Set forth on Schedule 5.15 is a complete and accurate list of all  Subsidiaries of each Credit Party and whether each such Person is a Material Subsidiary as of the Closing  Date. Schedule 5.15 shall be updated by Borrower within one hundred twenty (120) days after the end of  each calendar year and may be, but need not be, updated at any other time and from time to time by  Borrower by giving written notice thereof to Administrative Agent.  5.16 Use of Proceeds. The proceeds of the Loans hereunder will be used solely for the  purposes specified in Section 6.10.   5.17 Government Regulation.  (a) No proceeds of the Loans will be used, directly or indirectly, for the purpose of  purchasing or carrying any “margin stock” within the meaning of Regulation U, or for the  purpose of purchasing or carrying or trading in any securities. If requested by any Lender or  Administrative Agent, Borrower will furnish to Administrative Agent and each Lender a  statement to the foregoing effect in conformity with the requirements of FR Form U-1 referred to  in Regulation U. No Indebtedness being reduced or retired out of the proceeds of the Loans was  or will be incurred for the purpose of purchasing or carrying any margin stock within the meaning  of Regulation U or any “margin security” within the meaning of Regulation T. “Margin stock”  within the meaning of Regulation U does not constitute more than twenty-five percent (25%) of  the value of the consolidated assets of the Credit Parties and their Subsidiaries. None of the  transactions contemplated by the Credit Documents (including the direct or indirect use of the  proceeds of the Loans) will violate or result in a violation of (i) the Securities Act of 1933 or  (ii) the Securities Exchange Act of 1934.  (b) None of Borrower or any Guarantor is or is required to be registered as an  “investment company” under the Investment Company Act of 1940.  (c) No director, executive officer or principal shareholder of any Credit Party is a  director, executive officer or principal shareholder of any Lender.  5.18 Environmental Matters. Except as could not be reasonably expected to have a Material  Adverse Effect:  (a) Each of the Real Properties and all operations at the Real Properties are in  compliance with all applicable Environmental Laws, and there is no violation of any  Environmental Law with respect to the Real Properties or the businesses operated by the Credit  Parties (the “Businesses”), and there are no conditions relating to the Businesses or Real  Properties that would reasonably be expected to give rise to liability under any applicable  Environmental Laws.  





 






4889-9733-0207 v.9     - 65 -    (b) No Credit Party has received any written notice of, or inquiry from any  Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or  potential liability regarding Hazardous Materials or compliance with Environmental Laws with  regard to any of the Real Properties or the Businesses, nor, to the knowledge of Borrower, is any  such notice being threatened.  (c) Hazardous Materials have not been transported or disposed of from the Real  Properties, or generated, treated, stored or disposed of at, on or under any of the Real Properties  or any other location, in each case by, or on behalf or with the permission of, a Credit Party in a  manner that would give rise to liability under any applicable Environmental Laws.  (d) No judicial proceeding or governmental or administrative action is pending or, to  the knowledge of Borrower, threatened under any Environmental Law to which a Credit Party is  or will be named as a party, nor are there any consent decrees or other decrees, consent orders,  administrative orders or other orders, or other administrative or judicial requirements outstanding  under any Environmental Law with respect to a Credit Party, the Real Properties or the  Businesses.  (e) There has been no release (including disposal) or threat of release of Hazardous  Materials at or from the Real Properties, or arising from or related to the operations of a Credit  Party in connection with the Real Properties or otherwise in connection with the Businesses  where such release constituted a violation of, or would give rise to liability under, any applicable  Environmental Laws.  (f) None of the Real Properties contains, or has previously contained, any Hazardous  Materials at, on or under the Real Properties in amounts or concentrations that, if released,  constitute or constituted a violation of, or could give rise to liability under, Environmental Laws.  (g) No Credit Party has assumed any liability of any Person (other than another  Credit Party or Subsidiary thereof) under any Environmental Law.  5.19 Intellectual Property. Each Credit Party owns, or has the legal right to use, all patents,  trademarks, service marks, tradenames, copyrights, licenses, technology, know-how, processes and other  rights (the “Intellectual Property”), free from burdensome restrictions, that are necessary for the  operation of their respective businesses as presently conducted and as proposed to be conducted other  than those the absence of which could not reasonably be expected to cause a Material Adverse Effect.  Except as could not be reasonably expected to have a Material Adverse Effect, (a) no holding, decision or  judgment has been rendered by any Governmental Authority which would limit, cancel or question the  validity of any Intellectual Property and (b) no action or proceeding is pending that seeks to limit, cancel  or question the validity of any Intellectual Property or which, if adversely determined, could reasonably  be expected to have a material adverse effect on the value of any Intellectual Property.  5.20 Solvency. Each Credit Party is, and after consummation of the transactions contemplated  by this Agreement will be, Solvent.  5.21 Investments. All Investments of each Credit Party are (a) as set forth on Schedule 5.21  or (b) Permitted Investments.  5.22 Disclosure. Neither this Agreement nor any other Credit Document or financial statement  delivered to Administrative Agent, L/C Issuers, or the Lenders by or on behalf of any Credit Party in  connection with the transactions contemplated hereby contains any untrue statement of a material fact or  





 






4889-9733-0207 v.9     - 66 -    omits to state a material fact necessary in order to make the statements contained therein or herein, taken  as a whole, not misleading.  5.23 Licenses, Etc. Except as would not have or could not be reasonably expected to have a  Material Adverse Effect, the Credit Parties have obtained and hold in full force and effect, all material  franchises, licenses, permits, certificates, authorizations, qualifications, accreditations, easements, rights  of way and other rights, consents and approvals which are necessary for the operation of their respective  businesses as presently conducted.  5.24 Burdensome Restrictions. No Credit Party is a party to any agreement or instrument or  subject to any other obligation or any charter or corporate restriction or any provision of any Organization  Document or Law which, individually or in the aggregate, could be reasonably expected to have a  Material Adverse Effect.  5.25 Labor Contracts and Disputes. Except as disclosed on Schedule 5.25: (a) to Borrower’s  knowledge, there is no collective bargaining agreement or other labor contract covering employees of any  Credit Party; (b) no union or other labor organization is seeking to organize, or be recognized as, a  collective bargaining unit of employees of any Credit Party; and (c) there is no pending or, to any Credit  Party’s knowledge, threatened strike, work stoppage, material unfair labor practice claim or other material  labor dispute against or affecting any Credit Party or its employees which, individually or in the  aggregate, could be reasonably expected to have a Material Adverse Effect.  5.26 Broker’s Fees. No Credit Party has paid, will pay or agree to pay, or reimburse any other  Person with respect to, any finder’s, broker’s, investment banking or other similar fee in connection with  any of the transactions contemplated under the Credit Documents or has taken or will take any action that  would obligate Administrative Agent, any L/C Issuer, or any Lender to do any of the foregoing.  5.27 OFAC. Neither Borrower, nor any of its Subsidiaries, nor any director, officer,  employee, Affiliate, nor to Borrower’s knowledge, any agent or representative thereof, is an individual or  entity that is, or is owned or controlled by one or more individuals or entities that are (a) currently the  subject or target of any Sanctions, (b) included on OFAC’s List of Specially Designated Nationals, Her  Majesty’s Treasury’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or  any similar list enforced by any other relevant sanctions authority applicable to Borrower or its  Subsidiaries, or (c) located, organized or resident in a Designated Jurisdiction.  5.28 Anti-Corruption Laws. Borrower and its Subsidiaries, and their respective officers and  employees, have conducted their businesses in compliance with the United States Foreign Corrupt  Practices Act of 1977, the UK bribery Act 2010, and other similar anti-corruption legislation in other  jurisdictions, to the extent any such legislation is applicable to Borrower or its Subsidiaries, and have  instituted and maintained policies and procedures reasonably designed to promote and achieve  compliance with such Laws and applicable Sanctions by Borrower, its Subsidiaries, and their respective  officers and employees.  5.29 Affected Financial Institution. No Credit Party is an Affected Financial Institution.  5.30 Beneficial Ownership Certification. As of the Closing Date, the information included in  the Beneficial Ownership Certification is true and correct in all respects.  





 






4889-9733-0207 v.9     - 67 -    Article VI. Affirmative Covenants  Borrower hereby covenants and agrees that so long as any Lender shall have any Commitment  hereunder, any Loan or other Obligation hereunder (other than unasserted contingent claims for  indemnification or expense reimbursement for which no claim has been asserted or demanded) shall  remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:  6.01 Information Covenants. Borrower will furnish, or cause to be furnished, to  Administrative Agent and each of the Lenders:  (a) Annual Financial Statements. As soon as available, and in any event within one  hundred twenty (120) days after the close of each fiscal year of Borrower, a consolidated balance  sheet and income statement of Borrower and its Subsidiaries, as of the end of such fiscal year,  together with related consolidated statements of operations, retained earnings, shareholders equity  and cash flows for such fiscal year, setting forth in comparative form consolidated figures for the  preceding fiscal year, all such financial information described above to be in reasonable form and  detail and audited by independent certified public accountants of recognized national standing  reasonably acceptable to Administrative Agent and whose opinion shall be to the effect that such  financial statements have been prepared in accordance with GAAP (except for changes with  which such accountants concur) and shall not be limited as to the scope of the audit or qualified in  any manner, except for qualifications resulting from changes in GAAP and required or approved  by Borrower’s independent certified public accountants. It is specifically understood and agreed  that failure of the annual financial statements to be accompanied by an opinion of such  accountants in form and substance as provided herein shall constitute an Event of Default  hereunder.  (b) Quarterly Statements. As soon as available, and in any event within sixty (60)  days after the close of each of the first three (3) fiscal quarters of each fiscal year of Borrower, a  consolidated balance sheet and income statement of Borrower and its Subsidiaries, as of the end  of such quarter, together with related consolidated statements of operations, retained earnings,  Shareholders’ Equity and cash flow for such quarter, in each case setting forth in comparative  form consolidated figures for the corresponding period of the preceding fiscal year, all such  financial information described above to be in reasonable form and detail and reasonably  acceptable to Administrative Agent.  (c) Compliance Certificate. Within the time for delivery of the financial statements  required in Sections 6.01(a) and 6.01(b) above, a certificate of a Responsible Officer of Borrower  substantially in the form of Exhibit C, (i) certifying that such financial statements are true and  correct and have been prepared in accordance with GAAP, subject to changes resulting from  audit and normal year-end audit adjustments and the absence of footnotes, (ii) demonstrating  compliance with the financial covenants contained in Section 6.02, (iii) demonstrating  compliance with any other terms of this Agreement as requested by Administrative Agent; and  (iv) stating that no Default exists, or if any Default does exist, specifying the nature and extent  thereof and what action Borrower proposes to take with respect thereto. If necessary, Borrower  shall deliver financial statements prepared in accordance with GAAP as of the Closing Date, to  the extent GAAP has changed since the Closing Date, in order to show compliance with the terms  of this Agreement, including Section 6.02. In addition, at the time of any Investment pursuant to  clause (j) of the definition of Permitted Investments in excess of $10,000,000, a certificate of a  Responsible Officer of Borrower stating that after giving effect to such Investment on a pro forma  basis no Default will exist or be continuing as a result of such Investment.  





 






4889-9733-0207 v.9     - 68 -    (d) Reports. Promptly upon transmission or receipt thereof, (i) copies of any public  filings and registrations with, and reports to or from, the SEC, or any successor agency, and  copies of all financial statements, proxy statements, notices and reports as Borrower or any of its  Subsidiaries shall send to its shareholders generally and (ii) upon the written request of  Administrative Agent, all reports and written information to and from the United States  Environmental Protection Agency, or any state or local agency responsible for environmental  matters, the United States Occupational Safety and Health Administration, or any state or local  agency responsible for health and safety matters, or any successor agencies or authorities  concerning environmental, health or safety matters.  (e) Notices. Upon an executive officer of a Credit Party obtaining knowledge  thereof, Borrower will give written notice to Administrative Agent (a) immediately of the  occurrence of an event or condition consisting of a Default, specifying the nature and existence  thereof and what action the Credit Parties propose to take with respect thereto, and (b) promptly,  but in any event within five (5) Business Days, after the occurrence of any of the following with  respect to any Credit Party: (i) the pendency or commencement of any litigation, arbitral or  governmental proceeding against a Credit Party which if adversely determined could be  reasonably expected to have a Material Adverse Effect, (ii) the institution of any proceedings  against a Credit Party with respect to, or the receipt of written notice by such Person of potential  liability or responsibility for violation, or alleged violation, of any federal, state or local law, rule  or regulation (including Environmental Laws), the violation of which could be reasonably  expected to have a Material Adverse Effect, (iii) the occurrence of an event or condition which  shall constitute a default or event of default under any Indebtedness of a Credit Party in excess of  $10,000,000, other than Non-Recourse Land Financing, or (iv) any loss of or damage to any  property of a Credit Party or the commencement of any proceeding for the condemnation or other  taking of any property of a Credit Party having a value of $10,000,000 or more.  (f) ERISA. Upon any of the Credit Parties or any ERISA Affiliate obtaining  knowledge thereof, Borrower will give written notice to Administrative Agent promptly (and in  any event within two (2) Business Days) of: (i) any event or condition, including any Reportable  Event, that constitutes, or might reasonably lead to, an ERISA Event; (ii) with respect to any  Multiemployer Plan, the receipt of notice as prescribed in ERISA or otherwise of any withdrawal  liability assessed against the Credit Parties or any of their ERISA Affiliates, or of a determination  that any Multiemployer Plan is in reorganization or insolvent (both within the meaning of Title  IV of ERISA); (iii) the failure to make full payment on or before the due date (including  extensions) thereof of all amounts which a Credit Party or any ERISA Affiliates is required to  contribute to each Plan pursuant to its terms and as required to meet the minimum funding  standard set forth in ERISA and the Code with respect thereto; or (iv) any change in the funding  status of any Plan that could be reasonably expected to have a Material Adverse Effect; together  with a description of any such event or condition or a copy of any such notice and a statement by  the principal financial officer of Borrower briefly setting forth the details regarding such event,  condition, or notice, and the action, if any, which has been or is being taken or is proposed to be  taken by the Credit Parties with respect thereto. Promptly upon request, a Credit Party shall  furnish Administrative Agent and each of the Lenders with such additional information  concerning any Plan as may be reasonably requested, including copies of each annual  report/return (Form 5500 series), as well as all schedules and attachments thereto required to be  filed with the Department of Labor and/or the Internal Revenue Service pursuant to ERISA and  the Code, respectively, for each “plan year” (within the meaning of Section 3(39) of ERISA).  (g) Environmental.  





 






4889-9733-0207 v.9     - 69 -    (i) Subsequent to a notice from any Governmental Authority where the  subject matter of such notice would reasonably cause concern or during the existence of  an Event of Default, and upon the written request of Administrative Agent, the Credit  Parties will furnish or cause to be furnished to Administrative Agent, at the Credit  Parties’ expense, a report of an environmental assessment of reasonable scope, form and  depth, including, where appropriate, invasive soil or groundwater sampling, by a  consultant reasonably acceptable to Administrative Agent addressing the subject of such  notice or, if during the existence of an Event of Default, regarding any release or threat of  release of Hazardous Materials on any Real Property and the compliance by the Credit  Parties with Environmental Laws. If the Credit Parties fail to deliver such an  environmental assessment within sixty (60) days after receipt of such written request,  then Administrative Agent may arrange for same, and the Credit Parties hereby grant to  Administrative Agent and its representatives access to the Real Properties and a license  of a scope reasonably necessary to undertake such an assessment (including, where  appropriate, invasive soil or groundwater sampling). The reasonable cost of any  assessment arranged for by Administrative Agent pursuant to this provision will be  payable by the Credit Parties on demand.  (ii) Each Credit Party will conduct and complete all investigations, studies,  sampling and testing and all remedial, removal and other actions necessary to address all  Hazardous Materials on, from, or affecting any Real Property to the extent necessary to  be in compliance with all Environmental Laws and all other applicable federal, state, and  local laws, regulations, rules and policies and with the orders and directives of all  Governmental Authorities exercising jurisdiction over such Real Property to the extent  any failure could be reasonably expected to have a Material Adverse Effect.  (h) Other Information. As soon as available and in any event within sixty (60) days  of each fiscal quarter (or within one hundred twenty (120) days of the fourth fiscal quarter), a  “Land Report” and a “Consolidated Sales and Construction Activity Report” and with reasonable  promptness upon any request, such other information regarding the business, properties or  financial condition of the Credit Parties as Administrative Agent or any Lender (through  Administrative Agent) may reasonably request.  (i) Borrowing Base Certificate. During any period in which Borrower is required  to comply with Section 7.11, then within sixty (60) days following the last day of each fiscal  quarter during such period, a report (in a form reasonably satisfactory to Administrative Agent)  calculating the Borrowing Base and (if applicable) evidencing compliance with the Borrowing  Base covenant set forth in Section 7.11, as of the last day of such quarter certified by a  Responsible Officer of Borrower; provided that Borrower may (and at the request of  Administrative Agent shall) deliver such report within thirty (30) days of the end of any calendar  month.  (j) KYC Information. Promptly following any request therefor, information and  documentation reasonably requested by Administrative Agent or any Lender for purposes of  compliance with applicable “know your customer” requirements under the Act, the Beneficial  Ownership Regulation or other applicable anti-money laundering laws.  Documents required to be delivered pursuant to Section 6.01(a), (b) or (d)(i) (to the extent any  such documents are included in materials otherwise filed with the SEC) may be delivered electronically  and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower posts such  documents, or provides a link thereto on Borrower’s website on the Internet at the website address listed  





 






4889-9733-0207 v.9     - 70 -    on Schedule 10.02; or (ii) on which such documents are posted on Borrower’s behalf on an Internet or  intranet website, if any, to which each Lender and Administrative Agent have access (whether a  commercial, third-party website or whether sponsored by Administrative Agent); provided that:  (i) Borrower shall deliver paper copies of such documents to Administrative Agent or any Lender upon its  request to Borrower to deliver such paper copies until a written request to cease delivering paper copies is  given by Administrative Agent or such Lender and (ii) Borrower shall notify Administrative Agent (by  facsimile or electronic mail) of the posting of any such documents. Administrative Agent will endeavor to  notify each Lender of any notice from Borrower of the posting of any such documents, provided,  however, that Administrative Agent shall have no liability to any Lender for the failure to provide such  notice. 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely  responsible for requesting delivery to it or maintaining its copies of such documents.  Borrower hereby acknowledges that (a) Administrative Agent and/or the Arrangers may, but shall  not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information  provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting the  Borrower Materials on IntraLinks, SyndTrak, ClearPar, or a substantially similar electronic transmission  system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel  who do not wish to receive material non-public information with respect to 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. Borrower hereby agrees that (w) all  Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously  marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently  on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to  have authorized Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such  Borrower Materials as not containing any material non-public information with respect to Borrower or its  securities for purposes of United States Federal and state securities laws (provided, however, that to the  extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07);  (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the  Platform designated “Public Side Information;” and (z) Administrative Agent 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.”  6.02 Financial Covenants.  (a) Debt to Capitalization Ratio. As of the last day of each fiscal quarter of  Borrower (beginning with the fiscal quarter ending June 30, 2022), the Debt to Capitalization  Ratio shall be less than or equal to sixty percent (60%).  (b) Tangible Net Worth. As of the last day of each fiscal quarter of Borrower  (beginning with the fiscal quarter ending June 30, 2022), Tangible Net Worth shall be greater  than or equal to Minimum Net Worth. For purposes hereof, (a) “Minimum Net Worth” means the  amount by which (i) the sum of (A) $5,088,413,400, plus (B) an amount equal to fifty percent  (50%) of the cumulative Net Income of Borrower and its Subsidiaries (without deduction for  losses) earned for each completed fiscal quarter subsequent to March 31, 2022 to the date of  determination, plus (C) an amount equal to fifty percent (50%) of the cash proceeds of Equity  Interests of Borrower sold by Borrower after the Closing Date, plus (D) an amount equal to fifty  percent (50%) of the aggregate increase in Tangible Net Worth after the Closing Date by reason  of the issuance of Equity Interests of Borrower upon conversion of Indebtedness of Borrower into  such Equity Interests exceeds (ii) the aggregate amount paid by Borrower for repurchase of its  





 






4889-9733-0207 v.9     - 71 -    Equity Interests at any time after the Closing Date (but only to the extent such repurchases do not  exceed the Maximum Deductible Amount) and (b) “Maximum Deductible Amount” means an  amount equal to the cost of purchases and repurchases by Borrower of Equity Interests of  Borrower made after the Closing Date, not to exceed, in the aggregate during any one-year period  (as measured from January 1 to December 31 of each year) ten percent (10%) of Tangible Net  Worth as of the end of the fiscal year of Borrower preceding such one-year period.  6.03 Preservation of Existence and Franchises. Except as permitted by Section 7.04, each of  the Credit Parties will do all things necessary to preserve and keep in full force and effect its (a) existence,  rights and franchises and (b) authority, unless failure to preserve and keep in full force and effect its  authority could not be reasonably expected to have a Material Adverse Effect.  6.04 Books and Records. Each of the Credit Parties will keep complete and accurate books  and records of its transactions in accordance with GAAP (including the establishment and maintenance of  appropriate reserves).  6.05 Compliance with Law. Each of the Credit Parties will materially comply with all  material laws, rules, regulations and orders, and all applicable material restrictions imposed by all  Governmental Authorities, applicable to it and its property (including Environmental Laws), except in  such instances in which the failure to comply therewith could not reasonably be expected to have a  Material Adverse Effect.  6.06 Payment of Taxes and Other Indebtedness. Each of the Credit Parties will pay, settle  or discharge (a) all taxes, assessments and governmental charges or levies imposed upon it, or upon its  income or profits, or upon any of its properties, before they shall become delinquent, (b) all lawful claims  (including claims for labor, materials and supplies) which, if unpaid, might give rise to a Lien upon any of  its properties, and (c) all of its other Indebtedness as it shall become due (to the extent such repayment is  not otherwise prohibited by this Agreement); provided, however, that a Credit Party shall not be required  to pay any such tax, assessment, charge, levy, claim or Indebtedness which is being contested in good  faith by appropriate proceedings and as to which adequate reserves therefor have been established in  accordance with GAAP, unless the failure to make any such payment (i) would give rise to an immediate  right to foreclose or collect on a Lien securing such amounts or (ii) could be reasonably expected to have  a Material Adverse Effect.  6.07 Insurance. Each of the Credit Parties will at all times maintain in full force and effect  insurance (including worker’s compensation insurance, liability insurance, casualty insurance and  business interruption insurance) from insurance companies of recognized national standing, in such  amounts, covering such risks and liabilities and with such deductibles or self-insurance retentions as are  in accordance with normal industry practice.  6.08 Maintenance of Property. Each of the Credit Parties will maintain and preserve its  material properties, equipment and other assets in good repair, working order and condition, normal wear  and tear excepted, and will make, or cause to be made, in such properties and equipment from time to  time all repairs, renewals, replacements, extensions, additions, betterments and improvements thereto as  may be needed or proper, to the extent and in the manner customary for companies in similar businesses,  unless the failure to do so could not be reasonably expected to have a Material Adverse Effect.  6.09 Performance of Obligations. Each of the Credit Parties will perform in all material  respects all of its obligations under the terms of all material agreements, indentures, mortgages, security  agreements or other debt instruments to which it is a party or by which it or its property is bound, unless  the failure to do so could not be reasonably expected to have a Material Adverse Effect.  





 






4889-9733-0207 v.9     - 72 -    6.10 Use of Proceeds. The Credit Parties will use the proceeds/availability of the Loans and  Letters of Credit solely to provide working capital for the Credit Parties and for general corporate  purposes of the Credit Parties.  6.11 Audits/Inspections. Upon reasonable notice and during normal business hours, each  Credit Party will permit representatives appointed by Administrative Agent, including independent  accountants, agents, attorneys and appraisers, to visit and inspect such Credit Party’s property, including  its books and records, its accounts receivable and inventory, its facilities and its other business assets, and  to make photocopies or photographs thereof and to write down and record any information such  representative obtains and shall permit Administrative Agent or its representatives to investigate and  verify the accuracy of information provided to the Lenders. Borrower shall pay Administrative Agent’s  reasonable costs of any inspections or investigations conducted following the occurrence and during the  continuance of an Event of Default.  6.12 Additional Credit Parties. At the time any Person becomes a Material Subsidiary of a  Credit Party, Borrower shall so notify Administrative Agent and promptly thereafter (but in any event  within thirty (30) days after the date thereof or within such longer period of time as agreed to by  Administrative Agent) shall cause such Person to (a) execute a Supplemental Guaranty and (b) deliver to  Administrative Agent such other documentation as Administrative Agent may reasonably request,  including certified copies of resolutions and other corporate, limited liability company or partnership  documents and favorable opinions of counsel to such Person, all in form, content and scope reasonably  satisfactory to Administrative Agent. Administrative Agent and the Lenders agree that upon any  Subsidiary ceasing to be a Material Subsidiary, upon receipt by Administrative Agent of evidence thereof,  Administrative Agent shall, upon Borrower’s written request, execute, at Borrower’s expense, such  release documentation as is necessary to release such Subsidiary from its Guaranty Obligations hereunder  and such Subsidiary shall no longer be a Guarantor.  6.13 Anti-Corruption Laws; Sanctions. Borrower and its Subsidiaries will conduct their  businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery  Act 2010, and other similar anti-corruption legislation in other jurisdictions (to the extent any such  legislation is applicable to Borrower or its Subsidiaries) and with all applicable Sanctions, and will  maintain policies and procedures reasonably designed to promote and achieve compliance with such  Laws and Sanctions.  6.14 Stock Exchange Listing. Borrower’s common Equity Interests will at all times be traded  on the New York Stock Exchange, NASDAQ, or other nationally recognized exchange reasonably  acceptable to Required Lenders.   6.15 Keepwell. Borrower shall, and shall cause each other Credit Party that is a Qualified ECP  Guarantor (as defined in the Guaranty) to, comply with the provisions of Section 19 of the Guaranty.   Article VII. Negative Covenants  Borrower hereby covenants and agrees that so long as any Lender shall have any Commitment  hereunder, any Loan or other Obligation hereunder (other than unasserted contingent claims for  indemnification or expense reimbursement for which no claim has been asserted or demanded) shall  remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:  7.01 Indebtedness. No Credit Party will contract, create, incur, assume or permit to exist any  Indebtedness, except:  





 






4889-9733-0207 v.9     - 73 -    (a) Indebtedness arising under this Agreement and the other Credit Documents;  (b) Indebtedness existing as of the Closing Date as referenced in Section 5.10 (and  renewals, refinancings, replacements or extensions thereof on terms and conditions no more  favorable, in the aggregate, to the applicable creditor than such existing Indebtedness and in a  principal amount not in excess of that outstanding as of the date of such renewal, refinancing,  replacement or extension);  (c) Indebtedness in respect of current accounts payable and accrued expenses  incurred in the ordinary course of business and to the extent not current, accounts payable and  accrued expenses that are subject to bona fide dispute;  (d) Indebtedness owing by a Credit Party to another Credit Party;  (e) Indebtedness arising from Hedging Agreements entered into in the ordinary  course of business and not for speculative purposes;  (f) Indebtedness arising from judgments that do not cause an Event of Default;  (g) secured Indebtedness in connection with Non-Recourse Land Financing existing  on the Closing Date and Non-Recourse Land Financing with respect to real property acquired  after the Closing Date;  (h) other secured Indebtedness up to $250,000,000, in the aggregate, at any one time  outstanding;   (i) Guarantees of Borrower or any of its Subsidiaries in respect of Indebtedness  otherwise permitted by this Section 7.01; and  (j) other unsecured Indebtedness so long as, after giving effect thereto, Borrower is  in compliance with the financial covenants set forth in Section 6.02.  7.02 Liens. No Credit Party will contract, create, incur, assume or permit to exist any Lien  with respect to any of its property or assets of any kind (whether real or personal, tangible or intangible),  whether now owned or after acquired, except for Permitted Liens.  7.03 Nature of Business. No Credit Party will materially alter the character of its business  from that conducted as of the Closing Date or engage in any business other than the business conducted as  of the Closing Date and activities which are substantially similar or reasonably related, ancillary or  complimentary thereto or logical extensions thereof.  7.04 Consolidation and Merger. No Credit Party will merge, consolidate, liquidate, windup  or dissolve itself; provided that a Credit Party may merge or consolidate with or into another Person if the  following conditions are satisfied:  (a) the Person formed by such consolidation or into which such Credit Party is  merged shall either (i) be a Credit Party or (ii) expressly assume in writing all of the obligations  of a Credit Party under the Credit Documents; provided that if the transaction is between  Borrower and another Person, Borrower must be the surviving entity; and  





 






4889-9733-0207 v.9     - 74 -    (b) immediately after giving effect to such transaction, no Default shall have  occurred and be continuing.  7.05 Sale or Lease of Assets. Other than pursuant to a Sale and Leaseback Transaction  permitted pursuant to Section 7.09, no Credit Party will convey, sell, lease, transfer or otherwise Dispose  of (including pursuant to a Division), in one transaction or a series of transactions, all or any part of its  business or assets whether now owned or hereafter acquired, including inventory, receivables, equipment,  real property interests (whether owned or leasehold), and securities, other than: (a) any inventory sold or  otherwise Disposed of in the ordinary course of business; (b) the sale, lease, transfer or other disposal by a  Credit Party of any or all of its assets to another Credit Party; (c) obsolete, slow-moving, idle or worn-out  assets no longer used or useful in its business; (d) the transfer of assets which constitute a Permitted  Investment; (e) any Equity Issuance by Borrower; (f) the sale, lease or sublease of real property interests  in the ordinary course of business; (g)  Dispositions in connection with land bank transactions; (h) other  Dispositions in the ordinary course of business; (i) the sale, transfer or other disposal for fair market value  of all or any portion of the Equity Interests or assets of a Guarantor to a Person that is not a Credit Party;  and (j) the sale, transfer or other disposal for fair market value of other assets, so long as, solely with  respect to clauses (i) and (j), after giving effect thereto, no Event of Default exists and Borrower is in  compliance with the financial covenants set forth in Section 6.02 on a pro forma basis.  7.06 Advances, Investments and Loans. No Credit Party will make any Investments except  for Permitted Investments.  7.07 Transactions with Affiliates. No Credit Party will enter into any material transaction or  series of transactions, whether or not in the ordinary course of business, with any officer, director,  shareholder, Subsidiary or Affiliate other than on terms and conditions substantially as favorable as would  be obtainable in a comparable arm’s-length transaction with a Person other than an officer, director,  shareholder, Subsidiary or Affiliate.  7.08 Organizational Documents. No Credit Party will change its articles or certificate of  incorporation or its bylaws in any manner that would reasonably be likely to adversely affect the rights of  Administrative Agent, any L/C Issuer or the Lenders.  7.09 Sale Leaseback Transactions.  No Credit Party will enter into any Sale and Leaseback  Transaction if a Default exists.  7.10 Other Indebtedness. If a Default has occurred and is continuing or an acceleration of the  indebtedness under this Agreement has occurred, Borrower shall not voluntarily prepay, or permit any  Credit Party voluntarily to prepay, the principal amount, in whole or in part, of any indebtedness other  than (a) indebtedness owed to each Lender hereunder or under some other agreement between Borrower  and such Lender, (b) indebtedness which ranks pari passu with the indebtedness incurred under this  Agreement which is or becomes due and owing whether by reason of acceleration or otherwise and (c)  indebtedness which is exchanged for, or converted into, capital stock (or securities to acquire capital  stock) of any Credit Party.  7.11 Borrowing Base Limitations. If, as of the last day of the most recent fiscal quarter then  ended, Borrower does not have an Investment Grade Rating and the Debt to Capitalization Ratio is  greater than fifty-five percent (55%), then until Borrower delivers a Compliance Certificate pursuant to  Section 6.01(c) reflecting that the Debt to Capitalization Ratio is equal to or less than fifty-five percent  (55%), Borrower shall not permit the aggregate outstanding amount of all Borrowing Base Debt to, at any  time, exceed the Borrowing Base.  





 






4889-9733-0207 v.9     - 75 -    7.12 Sanctions. No Credit Party will, directly or knowingly indirectly, use the proceeds of any  Credit Extension, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint  venture partner or other individual or entity, to fund any activities of or business with any individual or  entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or  in any other manner that will result in a violation by any individual or entity (including any individual or  entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer or  otherwise) of Sanctions.  7.13 ERISA. Borrower shall not, or shall it permit any Subsidiary to, directly or indirectly be  (a) an employee benefit plan subject to Title I of ERISA, (b) a plan or account subject to Section 4975 of  the Code, (c) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA  or the Code or (d) a “governmental plan” within the meaning of ERISA.  7.14 Anti-Corruption Laws. No Credit Party will, directly or indirectly use the proceeds of  any Credit Extension for any purpose which would breach any anti-corruption, anti-bribery or anti-money  laundering Law, including the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act  2010, and other similar Laws in other jurisdictions.  Article VIII. Events of Default and Remedies  8.01 Events of Default. An Event of Default shall exist upon the occurrence, and during the  continuation, of any of the following specified events (each an “Event of Default”):  (a) Payment. Borrower shall default in the payment (i) when due of any principal of  any of the Loans or any Unreimbursed Amounts or (ii) within five (5) Business Days of when due  of any interest on the Loans or any Unreimbursed Amounts or any fees or other amounts owing  hereunder, under any of the other Credit Documents or in connection herewith.  (b) Representations. Any representation, warranty or statement made or deemed to  be made by any Credit Party herein, in any of the other Credit Documents, or in any statement or  certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in  any material respect (without duplication of any materiality qualifiers set forth therein) on the  date as of which it was made or deemed to have been made.  (c) Covenants. Borrower shall:  (i) default in the due performance or observance of any term, covenant or  agreement contained in Sections 6.02, 6.10 or 6.14 or Article VII;  (ii) default in the due performance or observance of any term, covenant or  agreement contained in Sections 6.01, 6.03, 6.05 or 6.11 and such default shall continue  unremedied for a period of five (5) Business Days after the earlier of Borrower becoming  aware of such default or notice thereof given by Administrative Agent; or  (iii) default in the due performance or observance by it of any term, covenant  or agreement (other than those referred to in paragraphs (a), (b), (c)(i), (c)(ii) or any  other paragraph of this Section 8.01) contained in this Agreement and such default shall  continue unremedied for a period of at least thirty (30) days after the earlier of Borrower  becoming aware of such default or written notice thereof given by Administrative Agent.  





 






4889-9733-0207 v.9     - 76 -    (d) Other Credit Documents. (i) Any Credit Party shall default in the due  performance or observance of any term, covenant or agreement in any of the other Credit  Documents and such default shall continue unremedied for a period of at least thirty (30) days  after the earlier of a Credit Party becoming aware of such default or written notice thereof given  by Administrative Agent, or (ii) any Credit Document shall fail to be in full force and effect or  any Credit Party shall so assert or any Credit Document shall fail to give Administrative Agent  and the Lenders the security interests, liens, rights, powers and privileges purported to be created  thereby.  (e) Guaranties. Any Guaranty or any provision thereof shall cease to be in full force  and effect, or any Guarantor thereunder or any Person acting by or on behalf of such Guarantor  shall deny or disaffirm such Guarantor’s obligations under such Guaranty.  (f) Bankruptcy, Etc. The occurrence of any of the following: (i) a court or  governmental agency having jurisdiction shall enter a decree or order for relief in respect of any  Credit Party or any of its Subsidiaries in an involuntary case under any applicable bankruptcy,  insolvency or other similar law now or hereafter in effect, or appoint a receiver, liquidator,  assignee, custodian, trustee, sequestrator or similar official of any Credit Party or any of its  Subsidiaries or for any substantial part of its property or ordering the winding up or liquidation of  its affairs; or (ii) an involuntary case under any applicable bankruptcy, insolvency or other similar  law now or hereafter in effect is commenced against any Credit Party or any of its Subsidiaries  and such petition remains unstayed and in effect for a period of sixty (60) consecutive days; or  (iii) any Credit Party or any of its Subsidiaries shall commence a voluntary case under any  applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to  the entry of an order for relief in an involuntary case under any such law, or consent to the  appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee,  sequestrator or similar official of such Person or any substantial part of its property or make any  general assignment for the benefit of creditors; or (iv) any Credit Party or any of its Subsidiaries  shall admit in writing its inability to pay its debts generally as they become due or any action  shall be taken by such Person in furtherance of any of the aforesaid purposes.  (g) Defaults under Other Agreements.  (i) A Credit Party shall default in the due performance or observance  (beyond the applicable grace period with respect thereto) of any material obligation or  condition of any contract or lease material to the Credit Parties taken as a whole to which  it is a party or by which it or its property is bound; or  (ii) With respect to any Indebtedness of a Credit Party the principal amount  of which is $150,000,000 or more in the aggregate (other than Indebtedness outstanding  under this Agreement and Non-Recourse Land Financing), (A) any such Credit Party  shall (x) default in any payment (beyond the applicable grace period with respect thereto,  if any) with respect to any such Indebtedness, or (y) default (after giving effect to any  applicable grace period) in the observance or performance relating to such Indebtedness  or contained in any instrument or agreement evidencing, securing or relating thereto, or  any other event or condition shall occur or condition exist, and any such default or other  event or condition referenced in this subclause (y) causes the holder or holders of such  Indebtedness (or trustee or agent on behalf of such holders) to cause (determined without  regard to whether any notice or lapse of time is required) any such Indebtedness to  become due prior to its stated maturity; (B) any such Indebtedness shall be declared due  and payable, or required to be prepaid other than by a regularly scheduled required  





 






4889-9733-0207 v.9     - 77 -    prepayment prior to the stated maturity thereof, or required to be repurchased, defeased  or redeemed (but not including a voluntary repayment of such Indebtedness); or (C) any  such Indebtedness shall mature and remain unpaid.  (h) Judgments. Any judgment, order, or decree (including any judgment, order, or  decree with respect to any litigation disclosed pursuant to the Credit Documents) shall be entered  against any one or more of the Credit Parties involving a liability of $75,000,000 or more in the  aggregate (to the extent not paid or covered by insurance provided by a carrier who has  acknowledged coverage and in any event not including any Non-Recourse Land Financing), and  such judgment, order or decree (i) is the subject of any enforcement proceeding commenced by  any creditor or (ii) shall continue unsatisfied, undischarged and unstayed for a period ending on  the first to occur of (A) the last day on which such judgment, order or decree becomes final and  unappealable or (B) thirty (30) days.   (i) ERISA. The occurrence of any of the following events or conditions: (A) any  unpaid contributions required under Section 303 of ERISA and Section 430 of the Code shall  exist with respect to any Single Employer Plan, or required under Section 304 or 305 of ERISA  and Section 431 or 432 of the Code shall exist with respect to any Multiemployer Plan with  respect to any Credit Party’s, any Subsidiary’s or any ERISA Affiliate’s contribution obligations  only; (B) any Lien shall arise on the assets of any Credit Party, any of its Subsidiaries or any  ERISA Affiliate in favor of the PBGC or a Plan; (C) an ERISA Event shall occur with respect to  a Single Employer Plan, which is, in the reasonable opinion of Administrative Agent, likely to  result in the termination of such Plan for purposes of Title IV of ERISA; (D) an ERISA Event  shall occur with respect to a Multiemployer Plan or Multiple Employer Plan, which is, in the  reasonable opinion of Administrative Agent, likely to result in (i) the termination of such Plan for  purposes of Title IV of ERISA, or (ii) any Credit Party, any of its Subsidiaries or any ERISA  Affiliate incurring any liability in connection with a withdrawal from, reorganization of (within  the meaning of Section 4241 of ERISA), or insolvency (within the meaning of Section 4245 of  ERISA) of such Plan; or (E) any non-exempt prohibited transaction (within the meaning of  Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall  occur which may subject any Credit Party, any of its Subsidiaries or any ERISA Affiliate to any  liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or  under any agreement or other instrument pursuant to which any Credit Party, any of its  Subsidiaries or any ERISA Affiliate has agreed or is required to indemnify any person against  any such liability.  (j) Ownership. There shall occur a Change of Control.  8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing,  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 any  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 Credit  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 Borrower;  





 






4889-9733-0207 v.9     - 78 -    (c) require that Borrower Cash Collateralize the L/C Obligations (in an amount equal  to the Minimum Collateral Amount with respect thereto); and  (d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and  remedies available to it, the Lenders and the L/C Issuers under the Credit Documents;  provided, however, that upon the occurrence of an actual or deemed entry of an order for relief  with respect to Borrower under the Bankruptcy Code of the United States, the obligation of each Lender  to make Loans and any obligation of the L/C Issuers 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 Borrower to Cash  Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without  further act of Administrative Agent or any Lender.  8.03 Application of Funds. 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), any  amounts received on account of the Obligations shall, subject to the provisions of Sections 2.14 and 2.15,  be applied by Administrative Agent in the following order:  First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and  other amounts (including fees, charges and disbursements of counsel to Administrative Agent and  amounts payable under Article III) payable to Administrative Agent in its capacity as such;  Second, to payment of that portion of the Obligations constituting fees, indemnities and other  amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C  Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C  Issuers and amounts payable under Article III), ratably among them in proportion to the respective  amounts described in this clause Second payable to them;  Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of  Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders  and the L/C Issuers in proportion to the respective amounts described in this clause Third payable to  them;  Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans  and L/C Borrowings, ratably among the Lenders and the L/C Issuers in proportion to the respective  amounts described in this clause Fourth held by them;  Fifth, to 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 Borrower pursuant to Sections 2.03 and 2.14; and  Last, the balance, if any, after all of the Obligations (other than unasserted contingent claims for  indemnification or expense reimbursement for which no claim has been asserted or demanded) have been  indefeasibly paid in full, to Borrower or as otherwise required by Law.  Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn amount  of Letters of Credit pursuant to clause Fifth 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  





 






4889-9733-0207 v.9     - 79 -    have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations,  if any, in the order set forth above.  Article IX. Administrative Agent  9.01 Appointment and Authority. Each of the Lenders and the L/C Issuers hereby  irrevocably appoints Bank of America to act on its behalf as Administrative Agent hereunder and under  the other Credit Documents and authorizes Administrative Agent to take such actions on its behalf and to  exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof, together  with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely  for the benefit of Administrative Agent, the Lenders and the L/C Issuers, and neither Borrower nor any  other Credit 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 Credit Documents (or any other similar  term) with reference to 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 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 Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise  expressly indicated or unless the context otherwise requires, include the Person serving as Administrative  Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend  money to, own securities of, act as the financial advisor or in any other advisory capacity for and  generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if  such Person were not Administrative Agent hereunder and without any duty to account therefor to the  Lenders.  9.03 Exculpatory Provisions. Administrative Agent shall not have any duties or obligations  except those expressly set forth herein and in the other Credit Documents, and its duties hereunder shall  be administrative in nature. Without limiting the generality of the foregoing, Administrative Agent:  (a) shall not be subject to any fiduciary or other implied duties, regardless of whether  a Default has occurred and is continuing;  (b) shall not have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated hereby or by  the other Credit Documents that 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 Credit Documents), provided that Administrative  Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,  may expose Administrative Agent to liability or that is contrary to any Credit 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 affect a forfeiture, modification or  termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and  (c) shall not, except as expressly set forth herein and in the other Credit Documents,  have any duty to disclose, and shall not be liable for the failure to disclose, any information  relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person  serving as Administrative Agent or any of its Affiliates in any capacity.  





 






4889-9733-0207 v.9     - 80 -    Administrative Agent shall not be liable for any action taken or not taken by it (i) with the  consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as  shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary, under the  circumstances as provided in Sections 10.01 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. Administrative Agent shall be deemed not to have knowledge of any Default unless and until  notice describing such Default is given in writing to Administrative Agent by Borrower, a Lender or an  L/C Issuer.  Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into  (i) any statement, warranty or representation made in or in connection with this Agreement or any other  Credit 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 Credit  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 Administrative Agent.  9.04 Reliance by Administrative Agent. Administrative Agent is authorized to rely upon the  continuing authority of the Authorized Persons and Authorized Signers to bind Borrower with respect to  all matters pertaining to the Loans and the Credit Documents, including the submission of Loan Notices  and the selection of interest rates. Such authorization may be changed only upon written notice addressed  to Administrative Agent accompanied by evidence, reasonably satisfactory to Administrative Agent, of  the authority of the Person giving such notice. Administrative Agent shall be entitled to rely upon, and  shall not incur any liability for relying upon, any notice, request, certificate, consent, statement,  instrument, document or other writing (including any electronic message, Internet or intranet website  posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise  authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it  orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any  liability for relying thereon. In determining compliance with any condition hereunder to the making of a  Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be  fulfilled to the satisfaction of a Lender or an L/C Issuer, Administrative Agent may presume that such  condition is satisfactory to such Lender or such L/C Issuer unless Administrative Agent shall have  received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or  the issuance of such Letter of Credit. Administrative Agent may consult with legal counsel (who may be  counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable  for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or  experts.   9.05 Delegation of Duties. Administrative Agent may perform any and all of its duties and  exercise its rights and powers hereunder or under any other Credit Document by or through any one or  more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may  perform any and all of its duties and exercise its rights and powers by or through their respective Related  Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related  Parties of Administrative Agent and any such sub-agent, and shall apply to their respective activities in  connection with the syndication of the credit facilities provided for herein as well as activities as  Administrative Agent. 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 Administrative Agent acted with gross negligence or willful misconduct in the  selection of such sub-agents.  





 






4889-9733-0207 v.9     - 81 -    9.06 Resignation of Administrative Agent.  (a) Administrative Agent may at any time give notice of its resignation to the  Lenders, the L/C Issuers and Borrower. Upon receipt of any such notice of resignation, the  Required Lenders shall have the right, with the consent of Borrower (which consent shall not be  unreasonably withheld or delayed) so long as no Event of Default has occurred and is continuing,  to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of  any such bank with an office in the United States. 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 Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above,  provided that in no event shall any such successor Administrative Agent be a Defaulting Lender.  Whether or not a successor has been appointed, such resignation shall become effective in  accordance with such notice on the Resignation Effective Date.  (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to  clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by  applicable Law, by notice in writing to Borrower and such Person remove such Person as  Administrative Agent and, in consultation with Borrower, appoint a successor. If no such  successor shall have been so appointed by the Required Lenders and shall have accepted such  appointment within 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) With effect from the Resignation Effective Date or the Removal Effective Date  (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its  duties and obligations hereunder and under the other Credit Documents and (2) 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  Administrative Agent shall instead be made by or to each Lender and each 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 Credit Documents  (if not already discharged therefrom as provided above in this Section). The fees payable by  Borrower to a successor Administrative Agent shall be the same as those payable to its  predecessor unless otherwise agreed between Borrower and such successor. After the retiring or  removed Administrative Agent’s resignation or removal hereunder and under the other Credit  Documents, the provisions of this Article and Section 10.04 shall continue in effect for the  benefit of such retiring or removed Administrative Agent, its sub-agents and their respective  Related Parties in respect of any actions taken or omitted to be taken by any of them while the  retiring or removed Administrative Agent was acting as Administrative Agent.  (d) Any resignation by Bank of America as Administrative Agent pursuant to this  Section shall also constitute its resignation as an L/C Issuer. If Bank of America resigns as an L/C  





 






4889-9733-0207 v.9     - 82 -    Issuer, it shall (1) retain all the rights, powers, privileges and duties of an L/C Issuer hereunder  with respect to all Letters of Credit outstanding as of the effective date of its resignation as an 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), and (2) not take any action intended to directly or indirectly cause any  beneficiary of any Letter of Credit issued by Bank of America to draw upon such existing Letter  of Credit solely based on Bank of America’s resignation as L/C Issuer. Upon (x) the appointment  by Borrower of a successor L/C Issuer hereunder, and (y) the acceptance by the successor L/C  Issuer of such appointment (which successor shall in all cases be a Lender other than a Defaulting  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, (b) the retiring L/C Issuer shall be discharged  from all of their respective duties and obligations hereunder or under the other Credit Documents,  and (c) the successor L/C Issuer or the other L/C Issuers 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 and Other Lenders. Each Lender and each  L/C Issuer acknowledges that it has, independently and without reliance upon Administrative Agent or  any other Lender or any of their Related Parties and based on such documents and information as it has  deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender  and each L/C Issuer also acknowledges that it will, independently and without reliance upon  Administrative Agent or any other Lender or any of their Related Parties and based on such documents  and information as it shall from time to time deem appropriate, continue to make its own decisions in  taking or not taking action under or based upon this Agreement, any other Credit Document or any related  agreement or any document furnished hereunder or thereunder.  9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the  Bookrunners, Arrangers or Syndication Agent listed on the cover page hereof shall have any powers,  duties or responsibilities under this Agreement or any of the other Credit Documents, except in its  capacity, as applicable, as Administrative Agent, a Lender or an L/C Issuer hereunder.  9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any  proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party,  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  Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered, by  intervention in such proceeding or otherwise:  (a) to file and prove a claim for the whole amount of the principal and interest owing  and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and  unpaid and to file such other documents as may be necessary or advisable in order to have the  claims of the Lenders, the L/C Issuers and Administrative Agent (including any claim for the  reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers  and Administrative Agent and their respective agents and counsel and all other amounts due the  Lenders, the L/C Issuers and Administrative Agent under Sections 2.03(i) and 2.03(j), 2.08 and  10.04) allowed in such judicial proceeding; and  (b) to collect and receive any monies or other property payable or deliverable on any  such claims and to distribute the same;  





 






4889-9733-0207 v.9     - 83 -    and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to  Administrative Agent and, in the event that Administrative Agent shall consent to the making of such  payments directly to the Lenders and the L/C Issuers, to pay to Administrative Agent any amount due for  the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its  agents and counsel, and any other amounts due Administrative Agent under Sections 2.08 and 10.04.  Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or  accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement,  adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to  authorize Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any  such proceeding.  9.10 Recovery of Erroneous Payments. Without limitation of any other provision in this  Agreement, if at any time Administrative Agent makes a payment hereunder in error to any Lender or any  L/C Issuer, whether or not in respect of an Obligation due and owing by Borrower at such time, where  such payment is a Rescindable Amount, then in any such event, each Lender or L/C Issuer receiving a  Rescindable Amount severally agrees to repay to Administrative Agent forthwith on demand the  Rescindable Amount received by such Lender or L/C Issuer in immediately available funds in the  currency so received, with interest thereon, for each day from and including the date such Rescindable  Amount is received by it to but excluding the date of payment to Administrative Agent, at the greater of  the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking  industry rules on interbank compensation. Each Lender and L/C Issuer 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. Administrative Agent shall inform each Lender and L/C  Issuer promptly upon determining that any payment made to such Lender or L/C Issuer comprised, in  whole or in part, a Rescindable Amount.  Article X. Miscellaneous  10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any  other Credit Document, and no consent to any departure by Borrower or any other Credit Party therefrom,  shall be effective unless in writing signed by the Required Lenders and Borrower or the applicable Credit  Party, as the case may be, and acknowledged by 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:  (a) waive any condition set forth in Section 4.01(a) without the written consent of  each Lender;  (b) 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;  (c) increase the Letter of Credit Commitment of any L/C Issuer without the written  consent of such L/C Issuer;  (d) postpone any date fixed by this Agreement or any other Credit Document for any  payment of principal, interest, fees or other amounts due to the Lenders (or any of them)  hereunder or under any other Credit Document without the written consent of each Lender  directly affected thereby;  





 






4889-9733-0207 v.9     - 84 -    (e) reduce the principal of, or the rate of interest specified herein on, any Loan or  L/C Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01 relating to  the Fee Letters) any fees or other amounts payable hereunder or under any other Credit Document  without the written consent of each Lender directly affected thereby; provided, however, that only  the consent of the Required Lenders shall be necessary to (i) amend the definition of “Default  Rate”, (ii) waive any obligation of Borrower to pay interest or Letter of Credit Fees at the Default  Rate or (iii) amend any financial covenant in the Credit Documents, including Section 6.02 (or  any defined term used therein), in each case of clause (i) through (iii) above, 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 under the Credit Documents);  (f) change Section 8.03 or any other provision of this Agreement regarding the  ratable treatment of Lenders, in a manner that would alter the pro rata sharing of payments  required thereby without the written consent of each Lender;   (g) change any provision of this Section or the definition of “Required Lenders” or  any other provision hereof specifying the number or percentage of Lenders required to amend,  waive or otherwise modify any rights hereunder or make any determination or grant any consent  hereunder, without the written consent of each Lender;   (h) 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 Guarantor is permitted pursuant to  Section 6.12 (in which case such release may be made by Administrative Agent acting alone); or  (i) subordinate, or have the effect of subordinating, the Obligations hereunder to any  other Indebtedness or other obligation;  and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the  L/C Issuers in addition to the Lenders required above, affect the rights or duties of the L/C Issuers under  this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no  amendment, waiver or consent shall, unless in writing and signed by Administrative Agent in addition to  the Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or  any other Credit Document; (iii) any Fee Letter may be amended, or rights or privileges thereunder  waived, in a writing executed only by the parties thereto; and (iv) subject to the limitations set forth in  clauses (a) through (i) above, the Credit Documents may be amended with the written consent of  Administrative Agent (without the consent of any Lender) and Borrower (a) to add one or more term loan  facilities set forth in Section 2.13 and to permit the extensions of credit and all related obligations and  liabilities arising in connection therewith from time to time outstanding to share ratably (or on a basis  subordinated to the existing Obligations under this Agreement) in the benefits of Credit Documents with  the Obligations and liabilities from time to time outstanding in respect of the existing Obligations under  this Agreement, and (b) in connection with the foregoing, to permit, as deemed appropriate by  Administrative Agent, the Lenders providing such term loan facilities to participate in any required vote  or action required to be approved by the Required Lenders or by any other number, percentage or class of  Lenders hereunder. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any  right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver  or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected  with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the  Commitment of any Defaulting Lender may not be increased or extended without the consent of such  Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each  affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to  other affected Lenders shall require the consent of such Defaulting Lender.  





 






4889-9733-0207 v.9     - 85 -    All communications from Administrative Agent to the Lenders requesting the Lenders’  determination, consent, approval, or disapproval (i) shall be given in the form of a written notice to each  Lender, (ii) shall be accompanied by a description of the matter or thing as to which such determination,  approval, consent, or disapproval is requested, or shall advise each Lender where such matter or thing  may be inspected, or shall otherwise describe the matter or issue to be resolved, (iii) shall include, if  reasonably requested by a Lender and to the extent not previously provided to such Lender, written  materials and a summary of all oral information provided to Administrative Agent by Borrower in respect  of the matter or issue to be resolved, and (iv) shall include Administrative Agent’s recommended course  of action or determination in respect thereof. Each Lender shall reply promptly after receipt of any such  request by Administrative Agent; provided, however, that with respect to those matters requiring the  consent by the Required Lenders, unless a Lender shall give written notice to Administrative Agent that it  objects to the recommendation or determination of Administrative Agent within ten (10) Business Days  after receipt of any such request by Administrative Agent (or such lesser period as may be required under  the Credit Documents for Administrative Agent to respond), such Lender shall be deemed to have  approved of or consented to such recommendation or determination.  10.02 Notices; Effectiveness; Electronic Communication.  (a) Notices Generally. Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in subsection (b) below), all  notices and other communications provided for herein shall be in writing and shall be delivered  by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as  follows, 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 Borrower or any other Credit Party, Administrative Agent or an L/C  Issuer, to the address, facsimile number, electronic mail address or telephone number  specified for such Person on Schedule 10.02; and  (ii) if to any other Lender, to the address, facsimile number, electronic mail  address or telephone number specified in its Administrative Questionnaire (including, as  appropriate, notices delivered solely to the Person designated by a Lender on its  Administrative Questionnaire then in effect for the delivery of notices that may contain  material non-public information relating to Borrower).  Notices and other communications sent by hand or overnight courier service, or mailed by certified or  registered mail, shall be deemed to have been given when received; notices and other communications  sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal  business hours for the recipient, shall be deemed to have been given at the opening of business on the next  Business Day for the recipient). Notices and other communications delivered through electronic  communications to the extent provided in subsection (b) below, shall be effective as provided in such  subsection (b).  (b) Electronic Communications. Notices and other communications to the Lenders  and the L/C Issuers hereunder may be delivered or furnished by electronic communication  (including e-mail, FpML messaging, and Internet or intranet websites) pursuant to procedures  approved by Administrative Agent, provided that the foregoing shall not apply to notices to any  Lender or any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable,  has notified Administrative Agent that it is incapable of receiving notices under such Article by  electronic communication. Administrative Agent, any L/C Issuer or Borrower may each, in its  discretion, agree to accept notices and other communications to it hereunder by electronic  





 






4889-9733-0207 v.9     - 86 -    communications pursuant to procedures approved by it, provided that approval of such  procedures may be limited to particular notices or communications.  Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to  an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the  intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other  written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website  shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as  described in the foregoing clause (i) of notification that such notice or communication is available and  identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email  or other communication is not sent during the normal business hours of the recipient, such notice, email  or communication shall be deemed to have been sent at the opening of business on the next Business   Day for the recipient.  (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS  AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE  ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF  ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT  OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,  IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER  MATERIALS OR THE PLATFORM. In no event shall Administrative Agent or any of its  Related Parties (collectively, the “Agent Parties” and individually, an “Agent Party”) have any  liability to Borrower, any Lender, any 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  Borrower’s, any Credit Party’s or Administrative Agent’s transmission of Borrower Materials or  notices through the Platform, any other electronic platform or electronic messaging service, or  through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses  are determined by a court of competent jurisdiction by a final and non-appealable judgment to  have resulted from the gross negligence or willful misconduct of such Agent Party; provided,  however, that in no event shall any Agent Party have any liability to Borrower, any Lender, any  L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages  (as opposed to direct or actual damages).  (d) Change of Address, Etc. Each of Borrower, Administrative Agent and each L/C  Issuer may change its address, facsimile or telephone number for notices and other  communications hereunder by notice to the other parties hereto. Each other Lender may change  its address, facsimile or telephone number for notices and other communications hereunder by  notice to Borrower, Administrative Agent and the L/C Issuers. In addition, each Lender agrees to  notify Administrative Agent from time to time to ensure that Administrative Agent has on record  (i) an effective address, contact name, telephone number, facsimile number and electronic mail  address to which notices and other communications may be sent and (ii) accurate wire  instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one  individual at or on behalf of such Public Lender to at all times have selected the “Private Side  Information” or similar designation on the content declaration screen of the Platform in order to  enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance  procedures and applicable Law, including United States Federal and state securities Laws, to  make reference to Borrower Materials that are not made available through the “Public Side  





 






4889-9733-0207 v.9     - 87 -    Information” portion of the Platform and that may contain material non-public information with  respect to Borrower or its securities for purposes of United States Federal or state securities laws.  (e) Reliance by Administrative Agent, L/C Issuer and Lenders. Administrative  Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices  (including telephonic notices, Loan Notices and Letter of Credit Applications) purportedly given  by or on behalf of Borrower 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  Credit Parties shall indemnify Administrative Agent, each 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 Borrower. All  telephonic notices to and other telephonic communications with Administrative Agent may be  recorded by Administrative Agent, and each of the parties hereto hereby consents to such  recording.  10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, any L/C  Issuer or Administrative Agent to exercise, and no delay by any such Person in exercising, any right,  remedy, power or privilege hereunder or under any other Credit Document shall operate as a waiver  thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder  preclude any other or further exercise thereof or the exercise of any other right, remedy, power or  privilege. The rights, remedies, powers and privileges herein provided, and provided under each other  Credit Document, are cumulative and not exclusive of any rights, remedies, powers and privileges  provided by law.  Notwithstanding anything to the contrary contained herein or in any other Credit Document, the  authority to enforce rights and remedies hereunder and under the other Credit Documents against the  Credit Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in  connection with such enforcement shall be instituted and maintained exclusively by, Administrative  Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuers; provided,  however, that the foregoing shall not prohibit (a) 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 Credit Documents, (b) any L/C Issuer from exercising the rights and remedies that  inure to its benefit (solely in its capacity as an L/C Issuer) hereunder and under the other Credit  Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the  terms of Section 2.12), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on  its own behalf during the pendency of a proceeding relative to any Credit Party under any Debtor Relief  Law; and provided, further, that if at any time there is no Person acting as Administrative Agent  hereunder and under the other Credit Documents, then (i) the Required Lenders shall have the rights  otherwise ascribed to 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 2.12, 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.  10.04 Expenses; Indemnity; Damage Waiver.  (a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket  expenses incurred by Administrative Agent and its Affiliates (including the reasonable fees,  charges and disbursements of counsel for Administrative Agent), in connection with the  syndication of the credit facilities provided for herein, the preparation, negotiation, execution,  delivery and administration of this Agreement and the other Credit Documents or any  





 






4889-9733-0207 v.9     - 88 -    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 Issuers in connection with the issuance, amendment,  renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all  documented out-of-pocket expenses incurred by Administrative Agent, any Lender or any L/C  Issuer (including the fees, charges and disbursements of any counsel for Administrative Agent,  any Lender or any L/C Issuer), and shall pay all fees and time charges for attorneys who may be  employees of Administrative Agent, any Lender or any L/C Issuer, in connection with the  enforcement or protection of its rights (A) in connection with this Agreement and the other Credit  Documents, including its rights under this Section, or (B) in connection with the Loans made or  Letters of Credit issued hereunder, including all such documented out-of-pocket expenses  incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of  Credit.  (b) Indemnification by Borrower. The Credit Parties shall indemnify  Administrative Agent (and any sub-agent thereof), each Lender and each 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 documented 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 Borrower or any  other Credit Party) other than such Indemnitee and its Related Parties arising out of, in connection  with, or as a result of (i) the execution or delivery of this Agreement, any other Credit Document  or any agreement or instrument contemplated hereby or thereby, the performance by the parties  hereto of their respective obligations hereunder or thereunder, the consummation of the  transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any  sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other  Credit 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  an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented  in connection with such demand do not strictly comply with the terms of such Letter of Credit),  (iii) any actual or alleged presence or release of Hazardous Materials on or from any property  owned or operated by Borrower or any of its Subsidiaries, or any Environmental Liability related  in any way to Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,  litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,  tort or any other theory, whether brought by a third party or by Borrower or any other Credit  Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity  shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,  liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and  non-appealable judgment to have resulted from the gross negligence or willful misconduct of  such Indemnitee, (y) arise out of a dispute solely between or among Indemnitees (but excluding  any disputes involving Administrative Agent) not resulting from any act or omission of Borrower  or (z) result from a claim brought by Borrower or any other Credit Party against an Indemnitee  for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Credit  Document, if Borrower or such other Credit 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 10.04(b) shall not apply with respect to  Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax  claim.  





 






4889-9733-0207 v.9     - 89 -    (c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to  indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it  to Administrative Agent (or any sub-agent thereof), the applicable L/C Issuer or any Related  Party of any of the foregoing, each Lender severally agrees to pay to Administrative Agent (or  any such sub-agent), such L/C Issuer 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 Lenders’ Applicable  Percentage (determined as of the time that the applicable unreimbursed expense or indemnity  payment is sought), provided further that, the unreimbursed expense or indemnified loss, claim,  damage, liability or related expense, as the case may be, was incurred by or asserted against  Administrative Agent (or any such sub-agent) or any L/C Issuer in its capacity as such, or against  any Related Party of any of the foregoing acting for Administrative Agent (or any such sub- agent) or such L/C Issuer in connection with such capacity. The obligations of the Lenders under  this subsection (c) are subject to the provisions of Section 2.11(d).  (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by  applicable Law, Borrower shall not assert, and 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 Credit 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  subsection (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 Credit Documents or the transactions contemplated  hereby or thereby other than for direct or actual damages resulting from the gross negligence or  willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a  court of competent jurisdiction.  (e) Payments. All amounts due under this Section shall be payable not later than ten  (10) Business Days after demand therefor.  (f) Survival. The agreements in this Section and the indemnity provisions of  Section 10.02(e) shall survive the resignation of Administrative Agent and any L/C Issuer, the  replacement of any Lender, the termination of the Aggregate Commitments and the repayment,  satisfaction or discharge of all the other Obligations.  10.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is  made to Administrative Agent, any L/C Issuer or any Lender, or Administrative Agent, any 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 Administrative Agent, such 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  each L/C Issuer severally agrees to pay to Administrative Agent upon demand its applicable share  (without duplication) of any amount so recovered from or repaid by Administrative Agent, plus interest  





 






4889-9733-0207 v.9     - 90 -    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 Issuers under  clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the  termination of this Agreement.  10.06 Successors and Assigns.  (a) Successors and Assigns Generally. The provisions of this Agreement shall be  binding upon and inure to the benefit of the parties hereto and their respective successors and  assigns permitted hereby, except that neither Borrower nor any other Credit Party may assign or  otherwise transfer any of its rights or obligations hereunder without the prior written consent of  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  subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of  subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest  subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or  transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or  implied, shall be construed to confer upon any Person (other than the parties hereto, their  respective successors and assigns permitted hereby, Participants to the extent provided in  subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related  Parties of each of Administrative Agent, the L/C Issuers 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 (including all or a  portion of its Commitment and the Loans (including for purposes of this subsection (b),  participations in L/C Obligations) at the time owing to it); provided that any such assignment  shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount of  the assigning Lender’s Commitment and/or the Loans at the time owing to it or  contemporaneous assignments to related Approved Funds (determined after  giving effect to such assignments) that equal at least the amount specified in  paragraph (b)(i)(B) of this Section in the aggregate or in the case of an  assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no  minimum amount need be assigned; and  (B) in any case not described in subsection (b)(i)(A) of this Section,  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 Administrative Agent or, if “Trade  Date” is specified in the Assignment and Assumption, as of the Trade Date, shall  not be less than $5,000,000 unless each of Administrative Agent and, so long as  no Event of Default has occurred and is continuing, Borrower otherwise consents  (each such consent not to be unreasonably withheld or delayed).  





 






4889-9733-0207 v.9     - 91 -    (ii) Proportionate Amounts. Each partial assignment shall be made as an  assignment of a proportionate part of all the assigning Lender’s rights and obligations  under this Agreement with respect to the Loans or the Commitment assigned;  (iii) Required Consents. No consent shall be required for any assignment  except to the extent required by subsection (b)(i)(B) of this Section and, in addition:  (A) the consent of Borrower (such consent not to be unreasonably  withheld or delayed) shall be required unless (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  Borrower shall be deemed to have consented to any such assignment unless it  shall object thereto by written notice to Administrative Agent within five (5)  Business Days after having received notice thereof; and provided, further, that  Borrower’s consent shall not be required during the primary syndication of the  credit facility provided herein;  (B) the consent of Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required if such assignment is to a  Person that is not a Lender, an Affiliate of such Lender or an Approved Fund  with respect to such Lender; and  (C) the consent of the L/C Issuers shall be required for any  assignment.  (iv) Assignment and Assumption. The parties to each assignment shall  execute and deliver to Administrative Agent an Assignment and Assumption, together  with a processing and recordation fee in the amount of $3,500; provided, however, that  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 Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons. No such assignment shall be made  (A) to Borrower or any of 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 for, the primary benefit of an individual natural Person or group of related  individual 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 unless and until, in addition to the other conditions thereto set forth herein, the  parties to the assignment shall make such additional payments to Administrative Agent in  an aggregate amount sufficient, upon distribution thereof as appropriate (which may be  outright payment, purchases by the assignee of participations or subparticipations, or  other compensating actions, including funding, with the consent of Borrower and  Administrative Agent, the applicable pro rata share of Loans previously requested but not  funded by the Defaulting Lender, to each of which the applicable assignee and assignor  hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then  owed by such Defaulting Lender to Administrative Agent, any L/C Issuer or any Lender  





 






4889-9733-0207 v.9     - 92 -    hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full  pro rata share of all Loans and participations in Letters of Credit in accordance with its  Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment  of rights and obligations of any Defaulting Lender hereunder shall become effective  under applicable Law without compliance with the provisions of this paragraph, then the  assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of  this Agreement until such compliance occurs.  Subject to acceptance and recording thereof by Administrative Agent pursuant to subsection (c) of this  Section, from and after the effective date specified in each Assignment and Assumption, the assignee  thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such  Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the  assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and  Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment  and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01,  3.04, 3.05, and 10.04 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, 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 subsection 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 subsection (d) of this Section.  (c) Register. Administrative Agent, acting solely for this purpose as an agent of  Borrower (and such agency being solely for tax purposes), shall maintain at 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 stated interest) of the Loans and  L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the  “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower,  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 Borrower and any Lender, at any reasonable  time and from time to time upon reasonable prior notice.  (d) Participations. Any Lender may at any time, without the consent of, or notice to,  Borrower or 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 an individual natural Person or group of related individual natural Persons, a Defaulting  Lender or Borrower or any of 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) owing to it); provided that (i) such Lender’s obligations under this Agreement shall  remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for  the performance of such obligations and (iii) Borrower, Administrative Agent, the Lenders and  the L/C Issuers 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 10.04(c) without regard to the  existence of any participation.  





 






4889-9733-0207 v.9     - 93 -    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 10.01 that affects such Participant.  Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to  the same extent as if it were a Lender and had acquired its interest by assignment pursuant to  subsection (b) of this Section (it being understood that the Participant shall deliver the documentation  required under Section 3.01(e) to the Lender who sells the participation and the relevant Withholding  Agent) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to  paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of  Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be  entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than  the Lender from whom it acquired the applicable participation would have been entitled to receive, except  to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after  the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at  Borrower’s request and expense, to use reasonable efforts to cooperate with 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 10.08 as though it were a Lender; provided that  such Participant agrees to be subject to Section 2.12 as though it were a Lender. Each Lender that sells a  participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register  on which it enters the name and address of each Participant and the principal amounts (and stated interest)  of each Participant’s interest in the Loans or other obligations under the Credit 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 Credit  Document) to any Person except to the extent that such disclosure is necessary to establish that such  commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the  United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent  manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register  as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the  contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall  have no responsibility for maintaining a Participant Register.  (e) Certain Pledges. Any Lender may at any time pledge or assign a security  interest in all or any portion of its rights under this Agreement (including under its Note, if any)  to secure obligations of such Lender, including any pledge or assignment to secure obligations to  a Federal Reserve Bank or other central banking authority; 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) Reduction of Letter of Credit Commitments after Assignment; Resignation  as L/C Issuer after Assignment.   (i) If an L/C Issuer assigns a portion of its Commitment (as a Lender)  pursuant to this Section 10.06 and, after giving effect thereto, such L/C Issuer’s Letter of  Credit Commitment exceeds its Commitment (as a Lender), then such L/C Issuer’s Letter  of Credit Commitment shall automatically be reduced to the greater of (A) the amount of  its Commitment (as a Lender) and (B) the Outstanding Amount of all Letters of Credit  issued by such L/C Issuer at the time of such assignment. Such L/C Issuer’s Letter of  Credit Commitment shall be further reduced by the amount of each Letter of Credit  





 






4889-9733-0207 v.9     - 94 -    issued by such L/C Issuer that terminates or expires in accordance with its terms after  such assignment until such time as such L/C Issuer’s Letter Of Credit Commitment is  equal to its Commitment (as a Lender).  (ii) Notwithstanding anything to the contrary contained herein, if at any time  any Lender assigns all of its Commitment and Loans pursuant to subsection (b) above,  such Lender may, upon thirty (30) days’ notice to Borrower and Administrative Agent,  resign as L/C Issuer. In the event of any such resignation as L/C Issuer, Borrower shall be  entitled to appoint from among the Lenders a successor L/C Issuer hereunder (subject to  the consent of such proposed successor L/C Issuer); provided, however, that no failure by  Borrower to appoint any such successor shall affect the resignation of such Lender as L/C  Issuer. If any Lender resigns as L/C Issuer, it shall (1) retain all the rights, powers,  privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit  issued by such L/C Issuer outstanding as of the effective date of its resignation as an 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)), and (2) not take any action intended to directly or indirectly  cause any beneficiary of any Letter of Credit issued by such L/C Issuer to draw upon  such existing Letter of Credit solely based on such L/C Issuer’s resignation. Upon (x) the  appointment of a successor L/C Issuer, and (y) the acceptance by the successor L/C  Issuer of such appointment, (a) such successor shall succeed to and become vested with  all of the rights, powers, privileges and duties of the retiring L/C Issuer, and (b) the  successor L/C Issuer or the other L/C Issuers 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 such retiring L/C Issuer to effectively assume the obligations  of such L/C Issuer with respect to such Letters of Credit.  10.07 Treatment of Certain Information; Confidentiality. Each of Administrative Agent, the  Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below),  except that Information may be disclosed (a) 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), (b) 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), (c) to the extent required by applicable Laws or regulations or by any subpoena or  similar legal process, provided that the disclosing party shall use commercially reasonable efforts to  notify Borrower prior to the disclosure thereof unless prohibited by applicable Law, (d) to any other party  hereto, (e) in connection with the exercise of any remedies hereunder or under any other Credit Document  or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement  of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same  as those of this Section, to (i) any assignee of or Participant in, or any prospective 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 2.13(c) or (ii) any actual or prospective party (or its Related Parties) to  any swap, derivative or other transaction under which payments are to be made by reference to Borrower  and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating  agency in connection with rating Borrower or its Subsidiaries or the credit facilities provided hereunder,  (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of  CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (iii)  any credit insurance provider relating to Borrower and its Obligations hereunder, (h) with the consent of  Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a  breach of this Section or (y) becomes available to Administrative Agent, any Lender, any L/C Issuer or  





 






4889-9733-0207 v.9     - 95 -    any of their respective Affiliates on a nonconfidential basis from a source other than Borrower. In  addition, 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 Administrative Agent and the Lenders in connection with the  administration of this Agreement, the other Credit Documents, and the Commitments. For purposes of  this Section, “Information” means all information received from Borrower or any Subsidiary relating to  Borrower or any Subsidiary or any of their respective businesses, other than any such information that is  available to Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to  disclosure by Borrower or any Subsidiary. Any Person required to maintain the confidentiality of  Information as provided in this Section shall be considered to have complied with its obligation to do so  if such Person has exercised the same degree of care to maintain the confidentiality of such Information  as such Person would accord to its own confidential information.  Each of Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the  Information may include material non-public information concerning Borrower or a Subsidiary, as the  case may be, (b) it has developed compliance procedures regarding the use of material non-public  information and (c) it will handle such material non-public information in accordance with applicable  Law, including United States Federal and state securities Laws.  10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each  Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from  time to time, to the fullest extent permitted by applicable Law, to setoff and apply any and all deposits  (general or special, time or demand, provisional or final, in whatever currency) at any time held and other  obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such  Affiliate to or for the credit or the account of Borrower or any other Credit Party against any and all of the  obligations of Borrower or such Credit Party now or hereafter existing under this Agreement or any other  Credit Document to such Lender or such L/C Issuer or their respective Affiliates, irrespective of whether  or not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any  other Credit Document and although such obligations of Borrower or such Credit Party may be contingent  or unmatured or are owed to a branch, office or Affiliate of such Lender or such L/C Issuer different from  the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the  event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so setoff shall be  paid over immediately to 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 Administrative Agent, the L/C Issuers and the Lenders,  and (y) the Defaulting Lender shall provide promptly to Administrative Agent a statement describing in  reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of  setoff. The rights of each Lender, the L/C Issuers and their respective Affiliates under this Section are in  addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer  or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify Borrower and  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.   10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any  Credit Document, the interest paid or agreed to be paid under the Credit Documents shall not exceed the  maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If  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 Borrower. In determining whether the interest contracted for, charged, or received by  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  





 






4889-9733-0207 v.9     - 96 -    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.  10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in  counterparts (and by different parties hereto in different counterparts), each of which shall constitute an  original, but all of which when taken together shall constitute a single contract. This Agreement, the other  Credit Documents, and any separate letter agreements with respect to fees payable to Administrative  Agent or the L/C Issuers, 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 Administrative Agent and when Administrative Agent shall have received  counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic  imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of  this Agreement.  10.11 Survival of Representations and Warranties. All representations and warranties made  hereunder and in any other Credit 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 Administrative Agent and each  Lender, regardless of any investigation made by Administrative Agent or any Lender or on their behalf  and notwithstanding that 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.  10.12 Severability. If any provision of this Agreement or the other Credit 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 Credit 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 10.12, 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 Administrative Agent or the L/C Issuers, as applicable, then such provisions shall be  deemed to be in effect only to the extent not so limited.  10.13 Replacement of Lenders. If Borrower is entitled to replace a Lender pursuant to the  provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then  Borrower may, at its sole expense and effort, upon notice to such Lender and 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 10.06), 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 Credit Documents to an Eligible Assignee that shall assume such obligations (which assignee  may be another Lender, if a Lender accepts such assignment), provided that:  (a) Borrower shall have paid to Administrative Agent the assignment fee (if any)  specified in Section 10.06(b);  





 






4889-9733-0207 v.9     - 97 -    (b) such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other  amounts payable to it hereunder and under the other Credit Documents (including any amounts  under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued  interest and fees) or Borrower (in the case of all other amounts);  (c) in the case of any such assignment resulting from a claim for compensation under  Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will  result in a reduction in such compensation or payments thereafter;  (d) such assignment does not conflict with applicable Laws; and  (e) in the case of an assignment resulting from a Lender becoming a Non-Consenting  Lender, the applicable assignee shall have consented to the applicable amendment, waiver or  consent.  A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such  assignment and delegation cease to apply.  10.14 Governing Law; Jurisdiction; Etc.  (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT  DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION  (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT  OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT  (EXCEPT, AS TO ANY OTHER CREDIT DOCUMENT, AS EXPRESSLY SET FORTH  THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.  (b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER  CREDIT PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL  NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR  DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN  TORT OR OTHERWISE, AGAINST ADMINISTRATIVE AGENT, ANY LENDER, ANY L/C  ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO  THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS  RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF  THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED  STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO  IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF  SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH  ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN  SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY  APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO  AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR  PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER  JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER  PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER CREDIT  





 






4889-9733-0207 v.9     - 98 -    DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT, ANY  LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR  PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT  DOCUMENT AGAINST BORROWER OR ANY OTHER CREDIT PARTY OR ITS  PROPERTIES IN THE COURTS OF ANY JURISDICTION.  (c) WAIVER OF VENUE. BORROWER AND EACH OTHER CREDIT PARTY  IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR  HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING  ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT  DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST  EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT  FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH  COURT.  (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY  APPLICABLE LAW.  10.15 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 CREDIT 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 CREDIT DOCUMENTS BY, AMONG  OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.  10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each  transaction contemplated hereby (including in connection with any amendment, waiver or other  modification hereof or of any other Credit Document), Borrower and each other Credit Party  acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and  other services regarding this Agreement provided by Administrative Agent, the Arrangers, and the  Lenders are arm’s-length commercial transactions between Borrower, each other Credit Party and their  respective Affiliates, on the one hand, and Administrative Agent, the Arrangers, and the Lenders, on the  other hand, (B) each of Borrower and the other Credit Parties has consulted its own legal, accounting,  regulatory and tax advisors to the extent it has deemed appropriate, and (C) Borrower and each other  Credit Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the  transactions contemplated hereby and by the other Credit Documents; (ii) (A) Administrative Agent, each  Arranger and each Lender 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 Borrower, any other Credit Party or any of their respective Affiliates, or any other Person and  (B) neither Administrative Agent, any Arranger nor any Lender has any obligation to Borrower, any other  





 






4889-9733-0207 v.9     - 99 -    Credit 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 Credit Documents; and  (iii) 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 Borrower, the other Credit  Parties and their respective Affiliates, and neither Administrative Agent, any Arranger, nor any Lender  has any obligation to disclose any of such interests to Borrower, any other Credit Party or any of their  respective Affiliates. To the fullest extent permitted by law, each of Borrower and each other Credit Party  hereby waives and releases any claims that it may have against Administrative Agent, any Arranger or  any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with  any aspect of any transaction contemplated hereby.  10.17 Electronic Execution of Assignments and Certain Other Documents.   (a) The words “execute,” “execution,” “signed,” “signature,” and words of like  import in or related to any document to be signed in connection with this Agreement and the  transactions contemplated hereby (including Assignment and Assumptions, amendments or other  modifications, Loan Notices, waivers or consents) are deemed to include Electronic Signatures,  the electronic matching of assignment terms and contract formations on electronic platforms  approved by Administrative Agent, and any other Electronic Record.  (b) This Agreement and any document, amendment, approval, consent, information,  notice, certificate, request, statement, disclosure or authorization related to this Agreement (each  a “Communication”), including Communications required to be in writing, may be in the form of  an Electronic Record and may be executed using Electronic Signatures. Each of the Credit Parties  and each of Administrative Agent, L/C Issuers and/or Lenders (Administrative Agent, L/C Issuers  and Lenders are collectively referred to herein as “Secured Parties” and individually as a  “Secured Party”) agrees that any Electronic Signature on or associated with any Communication  shall be valid and binding on each 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 or a  paper-based recordkeeping system was used, as the case may be. 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, the authorization under this paragraph may include use or acceptance by  Administrative Agent and each of the Secured Parties 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. Administrative Agent and each of the Secured 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 the 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, Administrative Agent is under no  obligation to accept an Electronic Signature in any form or in any format unless expressly agreed  to by Administrative Agent pursuant to procedures approved by it; provided, further, without  limiting the foregoing, (i) to the extent Administrative Agent has agreed to accept such Electronic  Signature, Administrative Agent and each of the Secured Parties shall be entitled to rely on any  such Electronic Signature purportedly given by or on behalf of any Credit Party without further  verification and (ii) upon the request of Administrative Agent or any Lender, any Electronic  





 






4889-9733-0207 v.9     - 100 -    Signature shall be promptly followed by such manually executed counterpart. For purposes  hereof, “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.  10.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and  Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant  to the requirements of the Act, it is required to obtain, verify and record information that identifies  Borrower, which information includes the name and address of Borrower and other information that will  allow such Lender or Administrative Agent, as applicable, to identify Borrower in accordance with the  Act. Borrower shall, promptly following a request by Administrative Agent or any Lender, provide all  documentation and other information that 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 Act.  10.19 Time of the Essence. Time is of the essence of the Credit Documents.  10.20 ERISA.   (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,  Administrative Agent, Arrangers, and their respective Affiliates, and not, for the avoidance of  doubt, to or for the benefit of Borrower or any other Credit Party, that at least one of the  following is and will be true:   (i) such Lender is not using “plan assets” (within the meaning of 29 CFR §  2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in  connection with the Loans, the Letters of Credit or the Commitments,  (ii)  the transaction exemption set forth in one or more PTEs, such as PTE 84-14  (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95-60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90-1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91-38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE  96-23 (a class exemption for certain transactions determined by in-house asset managers),  is applicable with respect to such Lender’s entrance into, participation in, administration  of and performance of the Loans, the Letters of Credit, the Commitments and this  Agreement,  (iii)  (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Letters of  Credit, the Commitments and this Agreement, (C) the entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, the Commitments  and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of  PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection  (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement, or  





 






4889-9733-0207 v.9     - 101 -    (iv)  such other representation, warranty and covenant as may be agreed in  writing between Administrative Agent, in its sole discretion, and such Lender.  (b)  In addition, unless sub-clause (i) in the immediately preceding clause (a) is true  with respect to a Lender or such Lender has not provided another representation, warranty and  covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such  Person ceases being a Lender party hereto, for the benefit of, Administrative Agent, Arrangers,  and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of  Borrower or any other Credit Party, that:  (i)  none of Administrative Agent, Arrangers, or any of their respective  Affiliates is a fiduciary with respect to the assets of such Lender (including in connection  with the reservation or exercise of any rights by Administrative Agent under this  Agreement, any Credit Document or any documents related to hereto or thereto),  (ii)  the Person making the investment decision on behalf of such Lender with  respect to the entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit, the Commitments and this Agreement is independent (within  the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment  adviser, a broker-dealer or other person that holds, or has under management or control,  total assets of at least $50 million, in each case as described in 29 CFR § 2510.3- 21(c)(1)(i)(A)-(E),  (iii)  the Person making the investment decision on behalf of such Lender with  respect to the entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit, the Commitments and this Agreement is capable of  evaluating investment risks independently, both in general and with regard to particular  transactions and investment strategies (including in respect of the Obligations),  (iv)  the Person making the investment decision on behalf of such Lender with  respect to the entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under  ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the  Commitments and this Agreement and is responsible for exercising independent  judgment in evaluating the transactions hereunder, and  (v)  no fee or other compensation is being paid directly to Administrative Agent,  Arrangers, or any their respective Affiliates for investment advice (as opposed to other  services) in connection with the Loans, the Letters of Credit, the Commitments or this  Agreement.  (c)  Administrative Agent and each Arranger hereby inform the Lenders that each  such Person is not undertaking to provide impartial investment advice, or to give advice in a  fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person  has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate  thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit,  the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the  Letters of Credit or the Commitments for an amount less than the amount being paid for an  interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may  





 






4889-9733-0207 v.9     - 102 -    receive fees or other payments in connection with the transactions contemplated hereby, the  Credit Documents or otherwise, including structuring fees, commitment fees, arrangement fees,  facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or  collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees,  deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums,  banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.  10.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Solely  to the extent any Lender that is an Affected Financial Institution is a party to this Agreement and  notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement  or understanding among any such parties, each party hereto acknowledges that any liability of any Lender  that is an Affected Financial Institution arising under any Credit Document, to the extent such liability is  unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution  Authority and agrees and consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any  Lender that is an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent undertaking, or  a bridge institution that may be issued to it or otherwise conferred on it, and that such  shares or other instruments of ownership will be accepted by it in lieu of any rights with  respect to any such liability under this Agreement or any other Credit 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.  10.22 Acknowledgement Regarding Any Supported QFCs. To the extent that this  Agreement or any other Credit Document provide support, through a guarantee or otherwise, for any  Hedging Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit  Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with  respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together  with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such  Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the  Credit Documents and any Supported QFC may in fact be stated to be governed by the laws of the State  of New York and/or of the United States or any other state of the United States):  (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered  Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of  such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation  in or under such Supported QFC and such QFC Credit Support, and any rights in property  securing such Supported QFC or such QFC Credit Support) from such Covered Party will be  effective to the same extent as the transfer would be effective under the U.S. Special Resolution  Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation  and rights in property) were governed by the laws of the United States or a state of the United  





 






4889-9733-0207 v.9     - 103 -    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 Credit  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 Credit Documents were governed by the laws of the United States or a  state of the United States. Without limitation of the foregoing, it is understood and agreed that  rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the  rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.  (b) As used in this Section 10.22, the following terms have the following meanings:  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined  under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Covered Entity” means any of the following: (i) a “covered entity” as that term  is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered  bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);  or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 382.2(b).  “Default Right” has the meaning assigned to that term in, and shall be interpreted  in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “QFC” has the meaning assigned to the term “qualified financial contract” in,  and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  10.23 Amendment and Restatement of Existing Credit Agreement. The parties hereto agree  that as of the Closing Date: (a) the Obligations hereunder represent the amendment, restatement,  extension, and consolidation of the “Obligations” under the Existing Credit Agreement; (b) this  Agreement amends, restates, supersedes, and replaces the Existing Credit Agreement in its entirety; and  (c) any Guaranty executed pursuant to this Agreement amends, restates, supersedes, and replaces the  “Guaranty” executed pursuant to the Existing Credit Agreement. On the Closing Date, (i) the  commitment of any “Lender” under the Existing Credit Agreement that is not continuing as a Lender  hereunder shall terminate and (ii) Administrative Agent shall reallocate the Commitments hereunder to  reflect the terms hereof.  10.24 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER CREDIT  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 blank. Signature pages follow.]      





 






 





 






 





 






 





 






 





 






 





 






Signature Page to  Third Amended and Restated Credit Agreement  MIZUHO BANK, LTD., as a Lender and an L/C  Issuer  By:   Name: Donna DeMagistris  Title: Executive Director 





 






   Signature Page to  Third Amended and Restated Credit Agreement  TRUIST BANK, as a Lender and an L/C Issuer    By:       Name: Ryan Almond    Title:  Director   





 






 





 






 





 






 





 






 





 






 





 






 





 






  Signature Page to  Third Amended and Restated Credit Agreement  REGIONS BANK, as a Lender and an L/C  Issuer    By:       Name: Daniel Blazei   Title: Vice President    





 






4889-9733-0207 v.9    Schedule 1.01 - 1  Existing Letters of Credit    SCHEDULE 1.01    EXISTING LETTERS OF CREDIT  LC Issuer:  Bank of America    LC Number Beneficiary LC Type  Current Amount  Issue Date Expire Date Auto Renew  3069143 APS PERFORMANCE $101,428.00  3/6/2008 2/28/2023 Y  3069307 APS PERFORMANCE $159,334.01  5/19/2008 5/13/2023 Y  3070514 APS PERFORMANCE $207,412.00  6/10/2009 7/10/2022 Y  3070940 City of Lebanon PERFORMANCE $88,000.00  3/16/2011 3/10/2023 Y  3070944 State of Nevada RISK &  INSURANCE  $100,000.00  6/7/2011 5/12/2023 Y  3117497 City of Lebanon PERFORMANCE $473,775.00  7/5/2011 7/5/2022 Y  3121356 CITY OF NOVI PERFORMANCE $30,400.00  5/13/2014 5/8/2023 Y  3121851 Village of Hawthorn  Woods  PERFORMANCE $78,005.63  12/1/2014 12/1/2022    3122131 CITY OF  PLYMOUTH  PERFORMANCE $103,652.00  2/19/2015 2/19/2023 Y  3122300 WAYNE COUNTY PERFORMANCE $50,000.00  7/13/2015 7/13/2022 Y  3122302 RICE CREEK  WATERSHED  DISTRICT  PERFORMANCE $45,000.00  6/25/2015 6/25/2023 Y  3122452 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $47,200.00  8/28/2015 8/28/2022 Y  3122453 CITY OF LEBANON PERFORMANCE $171,000.00  8/28/2015 8/28/2022 Y  3122660 CITY OF SANTA FE  PLANNING & LAND  USE DEPARTMENT  PERFORMANCE $997,569.50  2/12/2016 3/1/2023 Y  3122668 CITY OF LEBANON PERFORMANCE $741,500.00  3/8/2016 3/8/2023 Y  3122669 CITY OF LEBANON PERFORMANCE $217,000.00  3/8/2016 3/8/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 2  Existing Letters of Credit    3132538 CITY OF  PLYMOUTH  PERFORMANCE $181,413.00  4/25/2016 4/25/2023 Y  3132539 CITY OF NOVI  TREASURER'S  OFFICE  PERFORMANCE $461,290.00  4/28/2016 4/28/2023 Y  3132542 CITY OF SANTA FE PERFORMANCE $254,277.24  5/13/2016 6/1/2023 Y  3132547 CITY OF  PLYMOUTH  PERFORMANCE $125,940.00  6/1/2016 6/1/2023 Y  3132556 FIRST AMERICAN  TITLE INSURANCE  COMPANY  PERFORMANCE $1,341.59  10/12/2017 10/12/2022 Y  3132557 FIRST AMERICAN  TITLE INSURANCE  COMPANY  PERFORMANCE $8,058.75  10/12/2017 10/12/2022 Y  3132562 CITY OF SANTA FE,  PLANNING & LAND  USE DEPARTMENT  (PLUD)  PERFORMANCE $536,262.75  6/13/2018 6/12/2023 Y  3132565 CITY OF SANTA FE,  PLANNING & LAND  USE DEPT  PERFORMANCE $1,445,436.41  7/11/2018 7/11/2022 Y  3132566 CITY OF SANTA FE,  PLANNING & LAND  USE DEPT  PERFORMANCE $169,009.79  7/11/2018 7/11/2022 Y  3132567 CITY OF SANTA FE,  PLANNING & LAND  USE DEPT  PERFORMANCE $42,244.54  7/11/2018 7/11/2022 Y  3132568 CITY OF SANTA FE,  PLANNING & LAND  USE DEPARTMENT  (PLUD)  PERFORMANCE $187,216.44  7/11/2018 7/11/2022 Y  3132569 CHARLESTON  COMMISSIONERS  OF PUBLIC WORKS  PERFORMANCE $68,019.20  8/24/2018 8/24/2022 Y  3132570 CITY OF SANTA FE,  PLANNING & LAND  USE DEPT  PERFORMANCE $76,953.00  7/12/2018 7/12/2022 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 3  Existing Letters of Credit    3132574 FIRST AMERICAN  TITLE COMPANY  AS ESCROW  AGENT  PERFORMANCE $376,543.83  10/4/2018 10/4/2022 Y  3132576 FIRST AMERICAN  TITLE INSURANCE  COMPANY AS  ESCROW AGENT  PERFORMANCE $420,197.67  11/13/2018 11/8/2022 Y  3132577 JOHN F COOK PA  AS ESCROW  AGENT  FINANCIAL  GUARANTEE  $213,700.00  11/16/2018 11/14/2022 Y  3132578 RIKER, DANZIG,  SCHERER, HYLAND  & PERRETTIL, LLP  AS ESCROW  AGENT  FINANCIAL  GUARANTEE  $2,000,000.00  11/30/2018 12/31/2022 Y  3132579 CAPITOL TITLE  INSURANCE  AGENCY AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $999,922.00  12/18/2018 12/18/2022 Y  3132589 ORION TOWNSHIP PERFORMANCE $100,000.00  3/11/2019 3/9/2023 Y  3132594 LANDMARK TITLE  ASSURANCE  AGENCY OF  ARIZONA  PERFORMANCE $420,000.00  5/30/2019 5/24/2023 Y  3132595 CHICAGO TITLE  INSURANCE  COMPANY  FINANCIAL  GUARANTEE  $135,000.00  5/31/2019 5/28/2023 Y  3132596 PRINGLE SQUARE  LLC C/O CHARTER  PROPERTIES INC  FINANCIAL  GUARANTEE  $1,388,224.77  6/27/2019 5/31/2023 Y  3132597 CHARLTON  COMISSIONERS OF  PUTLIC WORKS  PERFORMANCE $19,960.00  6/4/2019 6/4/2023 Y  3132598 FIDELITY  NATIONAL TITLE  AGENCY INC AS  PERFORMANCE $53,462.01  7/12/2019 7/10/2022 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 4  Existing Letters of Credit    ESCROW AGENT  3132601 CALATLANTIC  TITLE INC AS  ESCROW AGENT  PERFORMANCE $1,000,000.00  7/17/2019 7/17/2022 Y  3132602 CALATLANTIC  TITLE INC AS  ESCROW AGENT  PERFORMANCE $128,000.00  7/17/2019 7/17/2022 Y  3132603 CHARLESTON  WATER SYSTEM  PERFORMANCE $4,551.10  7/18/2019 7/17/2022 Y  3132604 TOWN OF  HOLLYWOOD  PERFORMANCE $13,820.00  7/30/2019 7/29/2022 Y  3132607 CHARTER  TOWNSHIP OF  ORION  PERFORMANCE $307,850.00  9/3/2019 9/3/2022 Y  3132608 CHARTER  TOWNSHIP OF  ORION  PERFORMANCE $89,545.00  9/3/2019 9/3/2022 Y  3132609 CITY OF WALLED  LAKE  PERFORMANCE $1,801,170.00  9/4/2019 9/4/2022 Y  3132611 CHARLESTON  WATER SYSTEM  MAINTENANCE $18,348.71  10/7/2019 10/7/2022 Y  3132612 TOWN OF  HOLLYWOOD  PERFORMANCE $26,470.13  10/7/2019 10/7/2022 Y  3132616 CHARLESTON  WATER SYSTEM  PERFORMANCE $38,522.44  10/28/2019 10/28/2022 Y  3132617 TOWN OF  HOLLYWOOD  PERFORMANCE $9,595.72  11/8/2019 11/8/2022 Y  3132619 CITY OF  BROOKLYN PARK  PERFORMANCE $439,422.00  11/5/2019 11/4/2022 Y  3132620 CHARLESTON  WATER SYSTEM  PERFORMANCE $12,319.38  11/8/2019 11/8/2022 Y  3132624 CHARLESTON  WATER SYSTEM  PERFORMANCE $35,594.10  6/5/2020 6/3/2023 Y  3132625 PGP TITLE OF  FLORIDA INC  FINANCIAL  GUARANTEE  $592,500.00  6/22/2020 6/16/2023 Y  3132628 FIRST AMERICAN  TITLE INSURANCE  PERFORMANCE $2,642,245.71  7/28/2020 6/22/2023    





 






4889-9733-0207 v.9    Schedule 1.01 - 5  Existing Letters of Credit    COMPANY  3132629 FIRST AMERICAN  TITILE INSURANCE  COMPANY  PERFORMANCE $1,455,535.71  7/28/2020 6/22/2023    3132630 CITY OF WACONIA PERFORMANCE $93,451.00  8/12/2020 8/12/2022 Y  3132631 CITY OF WACONIA PERFORMANCE $43,126.00  8/12/2020 8/12/2022 Y  3140544 FIRST AMERICAN  TITLE INSURANCE  COMPANY AS  ESCROW AGENT  PERFORMANCE $1,090,934.77  8/25/2020 8/25/2022    3140545 FIRST AMERICAN  TITLE INSURANCE  COMPANY AS  ESCROW AGENT  PERFORMANCE $257,213.99  8/25/2020 8/25/2022    3140548 CITY OF SANTA FE PERFORMANCE $440,597.18  9/23/2020 12/31/2022 Y  3140551 FIDELITY  NATIONAL TITLE  AGENCY  PERFORMANCE $335,443.85  10/26/2020 10/22/2022    3140554 VILLAGE OF  HAWTHORN  WOODS  PERFORMANCE $245,694.99  1/15/2021 3/1/2023    3140555 LANDMARK TITLE  ASSURANCE  AGENCY OF  ARIZONA LLC  PERFORMANCE $444,727.89  2/8/2021 2/4/2023    3140557 TOWNSHIP OF  HATFIELD  PERFORMANCE $13,948,458.98  4/13/2021 4/11/2023 Y  3140558 FIRST AMERICAN  TITLE INSURANCE  COMPANY  PERFORMANCE $583,074.00  5/14/2021 4/27/2023    3140559 CITY OF WACONIA PERFORMANCE $33,671.00  4/28/2021 4/28/2023 Y  3140560 CITY OF WACONIA PERFORMANCE $39,082.50  4/28/2021 4/28/2023 Y  3140561 SUMMIT  COMMUNITY  FINANCIAL  GUARANTEE  $1,262,000.00  5/6/2021 5/6/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 6  Existing Letters of Credit    BANK  3140562 CITY OF  COLUMBIA  DEPARTMENT OF  WASTEWATER  PERFORMANCE $420,495.00  5/13/2021 5/13/2023 Y  3140563 CITY OF  COLUMBIA  DEPARTMENT OF  WASTEWATER  PERFORMANCE $147,440.00  5/13/2021 5/13/2023 Y  3140564 BELLAMY ET AL,  ARCADIA LAND,  MUNGO HOMES  PERFORMANCE $708,333.33  6/9/2021 6/9/2023 Y  3140565 BELLAMY ET AL,  ARCADIA LAND,  MUNGO HOMES  PERFORMANCE $1,373,198.80  6/9/2021 6/9/2023 Y  3140566 CHARLESTON  WATER  PERFORMANCE $80,647.27  6/11/2021 6/11/2023 Y  3140567 CHARLESTON  WATER  PERFORMANCE $85,181.58  6/11/2021 6/11/2023 Y  3140568 CITY OF  LAKEVILLE  PERFORMANCE $71,460.00  6/30/2021 6/30/2023 Y  3140569 CHARLESTON  WATER SYSTEMS  MAINTENANCE $35,000.00  7/9/2021 7/22/2022 Y  3140570 BOLANOS  TRUSTON PA  FINANCIAL  GUARANTEE  $972,829.21  8/17/2021 8/9/2022 Y  3140572 BOLANOS  TRUXTON PA, AS  ESCROW AGENT  PERFORMANCE $940,946.00  8/9/2021 8/4/2022 Y  3140573 CITY OF VICTORIA PERFORMANCE $468,750.00  8/2/2021 7/29/2022 Y  3140575 CITY OF VICTORIA PERFORMANCE $2,477,500.00  8/24/2021 8/24/2022 Y  3140576 CHARLESTON  WATER SYSTEM  PERFORMANCE $40,301.91  10/15/2021 10/12/2023 Y  3140578 ALL AMERICAN  SETTLEMENT  SERVICES LLC AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $2,000,000.00  11/19/2021 4/30/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 7  Existing Letters of Credit    3140580 COUNTY OF ESSEX PERFORMANCE $41,447.60  12/3/2021 12/3/2022 Y  3140581 COUNTY OF ESSEX PERFORMANCE $65,626.50  12/3/2021 12/3/2022 Y  3140582 PBP TITLE OF  FLORIDA INC  FINANCIAL  GUARANTEE  $1,927,350.00  11/29/2021 11/29/2022 Y  3140583 FIDELITY  NATIONAL TITLE  AGENCY INC AS  ESCROW AGENT  PERFORMANCE $3,000,000.00  12/10/2021 12/20/2022   3140584 FIRST AMERICAN  TITLE INSURANCE  COMPANY  PERFORMANCE $1,662,842.00  12/14/2021 12/20/2022   3140585 HENDERSON,  FRANKLIN,  STARNES & HOLT  PA  FINANCIAL  GUARANTEE  $1,077,300.00  12/27/2021 12/16/2022 Y  3140586 CITY OF SANTA FE  PLANNING &LAND  USE DEPT  PERFORMANCE $145,455.37  1/14/2022 1/14/2024 Y  3140587 CITY OF SANTA FE,  PLANNING & LAND  USE DEPARTMENT  PERFORMANCE $3,135,198.92  1/14/2022 1/14/2024 Y  3140588 CITY OF  COLUMBIA  DEPTARTMENT OF  WASTEWATER  PERFORMANCE $85,845.00  3/17/2022 3/17/2023 Y  3140589 CITY OF  COLUMBIA  DEPTARTMENT OF  WASTEWATER  PERFORMANCE $80,801.00  3/17/2022 3/17/2023 Y  3140590 SOUTH CAROLINA  DEPARTMENT OF  TRANSPORTATION  PERFORMANCE $58,824.00  4/29/2022 4/19/2023     TOTAL $61,831,488.77                  





 






4889-9733-0207 v.9    Schedule 1.01 - 8  Existing Letters of Credit    LC Issuer:  Comerica Bank  LC Number Beneficiary LC Type  Current Amount  Issue Date Expire Date Auto Renew  OSB405676M WARMINSTER  TOWNSHIP  PERFORMANCE $691,847.25  3/9/2017 3/16/2023 Y  OSB405704M CITY OF NOVI PERFORMANCE $198,678.50  3/13/2017 3/10/2023 Y  OSB405715M CITY OF NOVI PERFORMANCE $179,740.00  3/14/2017 3/15/2023 Y  OSB405845M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $2,925,969.00  4/14/2017 4/13/2023 Y  OSB405846M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $45,000.00  4/14/2017 4/13/2023 Y  OSB406006M CITY OF NOVI  TREASURERS  OFFICE  PERFORMANCE $558,546.50  5/22/2017 5/21/2023 Y  OSB406079M WASHTENAW  COUNTY ROAD  COMMISSION  PERFORMANCE $5,000.00  6/14/2017 6/13/2023 Y  OSB406095M WASHTENAW  COUNTY WATER  RESOURCES  COMMISSIONER  PERFORMANCE $1,260,789.00  6/16/2017 6/15/2023 Y  OSB406198M CITY OF NOVI PERFORMANCE $455,978.00  7/10/2017 7/8/2022 Y  OSB406232M WASHTENAW  COUNTY WATER  RESOURCES  COMMISSIONER  PERFORMANCE $551,930.00  7/20/2017 7/17/2022 Y  OSB406276M WAYNE COUNTY PERFORMANCE $250,000.00  8/1/2017 7/27/2022 Y  OSB406289M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $1,964,075.00  8/3/2017 4/10/2023 Y  OSB406552M WAYNE COUNTY PERFORMANCE $150,000.00  10/2/2017 10/1/2022 Y  OSB407335M CHARTER PERFORMANCE $498,463.00  3/22/2018 3/19/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 9  Existing Letters of Credit    TOWNSHIP OF  CANTON  OSB407336M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $1,511,708.00  3/22/2018 3/19/2023 Y  OSB407798M CITY OF NOVI PERFORMANCE $1,503,758.80  7/11/2018 7/1/2022 Y  OSB407992M CHARTER  TOWNSHIP OF  INDEPENCE  PERFORMANCE $3,294,320.00  8/31/2018 8/29/2022 Y  OSB408004M CITY CORCORAN PERFORMANCE $402,347.25  9/10/2018 9/9/2022 Y  OSB408170M CITY OF  CORCORAN  PERFORMANCE $918,013.32  10/15/2018 10/14/2022 Y  OSB408630M CITY OF NOVI  TREASURERS  OFFICE  PERFORMANCE $228,842.00  1/25/2019 1/24/2023 Y  OSB408795M CITY OF NOVI  TREASURERS  OFFICE  PERFORMANCE $890,935.00  3/18/2019 3/15/2023 Y  OSB408859M CITY OF SAVAGE  MN  PERFORMANCE $150,000.00  4/8/2019 4/6/2023 Y  OSB408943M CITY OF  CORCORAN  PERFORMANCE $778,491.09  4/29/2019 4/28/2023 Y  OSB409033M WAYNE COUNTY PERFORMANCE $150,000.00  5/22/2019 6/21/2023 Y  OSB409061M WASHTENAW  COUNTY WATER  RESOURCE  COMMISSIONER  PERFORMANCE $1,486,512.00  6/13/2019 6/12/2023 Y  OSB409062M WASHTENAW  COUNTY ROAD  COMMISSION  PERFORMANCE $184,350.00  6/12/2019 6/11/2023 Y  OSB409067M CITY OF NOVI- TREASURERS  OFFICE  PERFORMANCE $538,644.81  6/5/2019 6/5/2023 Y  OSB409068M WASHTENAW  COUNTY WATER  RESOURCES  PERFORMANCE $993,821.00  6/5/2019 6/4/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 10  Existing Letters of Credit    COMMISSIONER  OSB409733M CITY OF  CORCORAN  PERFORMANCE $148,643.64  1/27/2020 1/27/2023 Y  OSB409990M CITY OF SAVAGE PERFORMANCE $306,215.00  6/17/2020 6/16/2023 Y  OSB410043M CITY OF BRIGHTON PERFORMANCE $2,085,280.00  7/14/2020 7/13/2022 Y  OSB410050M CITY OF  CORCORAN  PERFORMANCE $727,290.73  7/14/2020 7/13/2022 Y  OSB410130M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $1,554,119.00  8/18/2020 8/18/2022 Y  OSB410131M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $174,500.00  8/18/2020 8/18/2022 Y  OSB410137M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $138,875.00  8/20/2020 8/19/2022 Y  OSB410192M CITY OF  CORCORAN  PERFORMANCE $365,680.95  9/18/2020 9/17/2022 Y  OSB410381M WASHTENAW  COUNTY WATER  RESOURCES  COMMISSION  PERFORMANCE $367,729.50  1/26/2021 1/31/2023 Y  OSB410382M WASHTENAW  COUNTY ROAD  COMMISSION  PERFORMANCE $43,000.00  1/27/2021 1/31/2023 Y  OSB410515M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $239,085.00  3/23/2021 3/20/2023 Y  OSB410516M CHARTER  THOWNSHP OF  CANTON  PERFORMANCE $3,386,603.00  3/23/2021 3/20/2023 Y  OSB410517M CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $287,369.00  3/23/2021 3/18/2023 Y  OSB410611M WASHTENAW  COUNTY WATER  PERFORMANCE $596,746.00  5/27/2021 5/31/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 11  Existing Letters of Credit    RESOURCES  COMMISSION  OSB410746M MACOMB  TOWNSHIP  PERFORMANCE $122,970.50  8/26/2021 6/22/2023 Y  OSB410783M CITY OF NOVI PERFORMANCE $131,120.00  9/8/2021 6/22/2023 Y  OSB410790M MACOMB COUNTY  DEPARTMENT OF  ROADS  PERFORMANCE $18,344.20  9/15/2021 6/13/2023 Y  OSB411052M CHARTER  TOWNSHIP OF  CANTON  FINANCIAL  GUARANTEE  $2,496,543.00  2/28/2022 2/23/2023 Y    TOTAL  $35,957,874.04             





 






4889-9733-0207 v.9    Schedule 1.01 - 12  Existing Letters of Credit      LC Issuer:  Fifth Third Bank, National Association        LC Number Beneficiary LC Type  Current Amount  Issue Date Expire Date Auto Renew  S504817 CITY OF  PLYMOUTH MN  PERFORMANCE $93,212.00  9/5/2014 9/5/2022 Y  S504838 LOUISVILE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  MAINTENANCE $238,000.00  9/11/2014 9/11/2022 Y  S504896 WAYNE COUNTY PERFORMANCE $50,000.00  10/15/2014 10/15/2022 Y  S504897 WAYNE COUNTY PERFORMANCE $50,000.00  10/15/2014 10/15/2022 Y  S504899 WAYNE COUNTY PERFORMANCE $50,000.00  10/15/2014 10/15/2022 Y  S504900 WAYNE COUNTY PERFORMANCE $50,000.00  10/15/2014 10/15/2022 Y  S504902 Charter Township of  Brownstown  PERFORMANCE $50,000.00  10/7/2014 10/7/2022 Y  S504904 Charter Township of  Brownstown  PERFORMANCE $20,000.00  10/7/2014 10/7/2022 Y  S505376 MICHIGAN  DEPARTMENT OF  ENVIRONMENTAL  QUALITY  FINANCIAL  GUARANTEE  $34,500.00  2/4/2015 2/4/2023 Y  S505546 WEST VINCENT  TOWNSHIP  PERFORMANCE $643,084.75  4/8/2015 4/1/2023 Y  S505547 WEST VINCENT  TOWNSHIP  PERFORMANCE $105,515.04  4/8/2015 4/1/2023 Y  S506134 Charter Township of  Canton  PERFORMANCE $125,340.00  10/16/2015 10/16/2022 Y  S506135 CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $150,000.00  10/16/2015 10/16/2022 Y  S506620 ORION TOWNSHIP PERFORMANCE $500,000.00  6/20/2016 6/20/2023 Y  S506631 HILLTOWN  TOWNSHIP  PERFORMANCE $1,553,217.97  6/22/2016 6/22/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 13  Existing Letters of Credit    S506670 CITY OF DAYTON  MN  PERFORMANCE $15,206.00  7/14/2016 7/14/2022 Y  S506702 CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $583,400.00  8/3/2016 8/3/2022 Y  S506705 CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $130,140.00  8/3/2016 8/3/2022 Y  S506713 CITY OF DAYTON  MN  PERFORMANCE $224,065.87  8/5/2016 8/5/2022 Y  S506725 CHARTER  TOWNSHIP OF  NORTHVILLE  PERFORMANCE $439,925.00  8/15/2016 8/15/2022 Y  S506731 CITY OF  PLYMOUTH  PERFORMANCE $122,040.00  8/16/2016 8/16/2022 Y  S506762 VILLAGE OF  WILLOWBROOK  PERFORMANCE $190,488.00  9/15/2016 9/15/2022 Y  S506932 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  1/11/2017 1/11/2023 Y  S506938 CHARTER  TOWNSHIP OF  NORTHVILLE  PERFORMANCE $154,158.00  1/18/2017 1/18/2023 Y  S506946 CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $467,288.00  1/23/2017 1/23/2023 Y  S506948 WEST VINCENT  TOWNSHIP  PERFORMANCE $449,788.87  1/20/2017 2/1/2023 Y  S506958 CHARTER  TOWNSHIP OF  CANTON  PERFORMANCE $126,386.00  2/1/2017 2/1/2023 Y  S507052 CHARTER  TOWNSHIP OF  ORION  PERFORMANCE $500,000.00  4/7/2017 4/7/2023 Y  S507115 WEST VINCENT  TOWNSHIP  PERFORMANCE $395,688.86  5/24/2017 6/1/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 14  Existing Letters of Credit    S507120 CITY OF  PLYMOUTH MN  PERFORMANCE $53,802.00  5/25/2017 5/25/2023 Y  S507148 PGP TITLE INC DBA  PGP CLOSING  SERVICES  FINANCIAL  GUARANTEE  $175,000.00  6/14/2017 6/14/2023 Y  S507151 PGP TITLE INC DBA  PGP CLOSING  SERVICES  FINANCIAL  GUARANTEE  $50,000.00  6/14/2017 6/14/2023 Y  S507187 CITY OF  PLYMOUTH  PERFORMANCE $11,779.00  7/7/2017 7/7/2022 Y  S507210 CITY OF WHEATON PERFORMANCE $171,017.29  7/21/2017 7/21/2022 Y  S507308 CITY OF LAKE  ELMO  PERFORMANCE $114,100.00  9/15/2017 11/30/2022 Y  S507320 VALLEY BRANCH  WATERSHED  DISTRICT (VBWD)  PERFORMANCE $434,317.00  9/25/2017 9/21/2022 Y  S507330 CITY OF LAKE  ELMO  PERFORMANCE $2,985,833.00  10/2/2017 11/30/2022 Y  S507456 PGP TITLE INC FINANCIAL  GUARANTEE  $50,000.00  1/19/2018 1/19/2023 Y  S507520 PGP TITLE INC DBA  PGP CLOSING  SERVICES (PA)  FINANCIAL  GUARANTEE  $287,500.00  4/6/2020 9/1/2022    S507552 LOUISVILLE- METRO PUBLIC  WORKS & ASSETS  PERFORMANCE $3,000.00  3/29/2018 3/29/2023 Y  S507565 CITY OF  PLYMOUTH  PERFORMANCE $99,711.00  4/10/2018 4/10/2023 Y  S507568 VILLAGE OF  BLOOMINGDALE  PERFORMANCE $1,036,158.82  5/3/2018 5/3/2023 Y  S507584 CITY OF  PLYMOUTH  PERFORMANCE $117,056.00  4/25/2018 4/25/2023 Y  S507713 FIRST AMERICAN  TITLE INSURANCE  COMPANY AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $100,000.00  8/3/2018 8/3/2022 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 15  Existing Letters of Credit    S507727 CITY OF  PLYMOUTN  PERFORMANCE $266,815.00  8/23/2018 8/23/2022 Y  S507743 CITY OF LAKE  ELMO  PERFORMANCE $436,763.00  9/11/2018 9/11/2022 Y  S507744 CITY OF MEDINA  MN  PERFORMANCE $523,818.00  9/12/2018 9/12/2022 Y  S507793 FIRST AMERICAN  TITLE INSURANCE  COMPANY AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $300,000.00  10/24/2018 10/24/2022 Y  S507814 TOWNSHIP OF  UPPER SWYNEDD  PERFORMANCE $796,341.32  11/8/2018 11/8/2022 Y  S507924 LOUISVILLE- JEFFERSON  COUNTY METRO  PULIC WORKS  PERFORMANCE $3,000.00  2/13/2019 2/13/2023 Y  S507981 CITY OF  WOODBURY  PERFORMANCE $77,625.00  4/1/2019 4/1/2023 Y  S507982 COMMONWEALTH  OF PENNSYLVANIA  DOT  PERFORMANCE $370,878.00  4/9/2019 10/19/2022 Y  S507984 CITY OF DAYTON PERFORMANCE $516,950.10  4/8/2019 4/8/2023 Y  S507998 CHARTER  TOWNSHIP OF  ORION  PERFORMANCE $336,200.00  4/12/2019 4/12/2023 Y  S507999 CHARTER  TOWNSHIP OF  ORION  PERFORMANCE $1,780,000.00  4/12/2019 4/12/2023 Y  S508025 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  4/29/2019 4/29/2023 Y  S508619 COMMONWEALTH  OF PENNSYLVANIA  DEPARTMENT OF  TRANSPORTION  PERFORMANCE $1,070,967.00  6/14/2019 5/22/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 16  Existing Letters of Credit    S508653 CITY OF  PLYMOUTH  PERFORMANCE $321,103.00  6/19/2019 6/19/2023 Y  S508663 CITY OF  WOODBURY MN  PERFORMANCE $700,000.00  6/25/2019 6/25/2023 Y  S508664 CITY OF  WOODBURY MN  PERFORMANCE $172,800.00  6/25/2019 6/25/2023 Y  S508746 CITY OF RALEIGH PERFORMANCE $150,000.00  8/21/2019 8/21/2022 Y  S508753 CITY OF  PLYMOUTH  PERFORMANCE $127,521.00  8/26/2019 8/26/2022 Y  S508761 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  8/30/2019 8/30/2022 Y  S508819 CIT OF NEW  BRIGHTON  PERFORMANCE $332,616.25  10/11/2019 10/11/2022 Y  S508827 CITY OF LAKE  ELMO  PERFORMANCE $335,500.00  10/18/2019 11/30/2022 Y  S509000 COUCH  BRANSDORF  INSURANCE  COMPANY INC AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $500,000.00  2/19/2020 9/1/2022    S509132 CITY OF LAKE  ELMO  PERFORMANCE $1,967,598.00  6/24/2020 6/24/2023 Y  S509149 CITY OF  WOODBURY  PERFORMANCE $297,625.00  7/2/2020 7/2/2022 Y  S509150 CITY OF  WOODBURY  PERFORMANCE $453,750.00  7/2/2020 7/2/2022 Y  S509156 CITY OF LAKE  ELMO  PERFORMANCE $1,555,228.00  7/13/2020 7/9/2022 Y  S509191 CITY OF  PLYMOUTH  PERFORMANCE $576,866.00  8/18/2020 8/18/2022 Y  S509238 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  10/2/2020 10/2/2022 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 17  Existing Letters of Credit    S509250 CITY OF CHASKA PERFORMANCE $1,351,176.00  10/6/2020 10/6/2022 Y  S509298 CITY OF APPLE  VALLEY  PERFORMANCE $74,650.00  11/10/2020 11/10/2022 Y  S509330 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  11/27/2020 11/27/2022 Y  S509364 SAUL EWING  ARNSTEIN & LEHR,  LLP  FINANCIAL  GUARANTEE  $500,000.00  12/23/2020 12/23/2023    S509456 HERB REAL  ESTATE INC AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $100,000.00  3/5/2021 5/1/2024    S509480 HIGH RIDGE TITLE  GROUP LLC  FINANCIAL  GUARANTEE  $560,000.00  3/30/2021 3/30/2023 Y  S509486 CITY OF BLAINE PERFORMANCE $230,000.00  4/5/2021 4/5/2023 Y  S509502 CHARTER  TOWNSHIP OF  ORION  PERFORMANCE $1,018,200.00  4/21/2021 4/16/2023 Y  S509503 CHARTER  TOWNSHIP OF  ORION  PERFORMANCE $81,016.00  4/21/2021 4/16/2023 Y  S509514 PA DOT PERFORMANCE $1,142,856.66  5/25/2021 5/25/2024 Y  S509523 LANCASTER  COUNTY  PLANNING  DEPARTMENT  PERFORMANCE $217,878.75  5/12/2021 5/12/2023 Y  S509530 CITY OF LAKE  ELMO  PERFORMANCE $1,699,861.00  5/14/2021 5/14/2023 Y  S509531 CITY OF MEDINA PERFORMANCE $2,784,743.78  5/13/2021 5/13/2023 Y  S509544 CITY OF  ARMINGTON HILLS  PERFORMANCE $302,655.00  6/10/2021 6/10/2023 Y  S509572 SECURITY  ABSTRACT OF PA  INC AS ESCROW  FINANCIAL  GUARANTEE  $100,000.00  6/21/2021 6/21/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 18  Existing Letters of Credit    AGENT  S509580 CITY OF APPLE  VALLEY  PERFORMANCE $678,875.00  7/6/2021 7/6/2022 Y  S509604 CITY OF APPLE  VALLEY  PERFORMANCE $707,760.00  7/30/2021 7/30/2022 Y  S509619 LYON TOWNSHIP PERFORMANCE $304,489.00  8/16/2021 6/1/2023 Y  S509622 CHARTER  TOWNSHIP OF  NORTHVILLE  PERFORMANCE $185,115.00  8/10/2021 8/10/2023 Y  S509631 SECURITY  ABSTRACT OF PA  INC  FINANCIAL  GUARANTEE  $650,000.00  8/19/2021 8/19/2022 Y  S509637 CITY OF  WOODBURY  PERFORMANCE $82,375.00  8/25/2021 8/25/2022 Y  S509638 CITY OF  WOODBURY  PERFORMANCE $1,421,875.00  8/25/2021 8/25/2022 Y  S509684 CITY OF  CORCORAN  PERFORMANCE $2,737,174.38  9/27/2021 9/27/2022 Y  S509686 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  9/28/2021 9/28/2022 Y  S509728 CITY OF  CORCORAN  PERFORMANCE $8,491,843.54  11/9/2021 11/9/2022 Y  S509775 CHARTER  TOWNSHIP OF  NORTHVILLE  PERFORMANCE $70,000.00  12/15/2021 12/15/2023 Y  S509817 LANCASTER  COUNTY  PLANNING  DEPARTMENT  PERFORMANCE $209,751.25  1/10/2022 1/10/2023 Y  S509826 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  1/13/2022 1/13/2023 Y  S509828 LYON TOWNSHIP PERFORMANCE $425,500.00  1/18/2022 1/18/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 19  Existing Letters of Credit    S509829 LYON TOWNSHIP PERFORMANCE $236,000.00  1/18/2022 1/18/2023 Y  S509855 CITY OF  CORCORAN  PERFORMANCE $850,187.00  1/31/2022 1/31/2023 Y  S509862 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  2/9/2022 2/9/2023 Y  S509909 PGP TITLE INC.  DBA PGP CLOSING  FINANCIAL  GUARANTEE  $200,000.00  3/21/2022 3/21/2023 Y  S509926 LANCASTER  COUNTY  PLANNING  DEPARTMENT  PERFORMANCE $47,141.70  4/15/2022 4/15/2024 Y  S509939 CITY OF  CORCORAN  PERFORMANCE $514,637.33  4/14/2022 4/14/2023 Y  S509951 CITY OF CHASKA PERFORMANCE $5,676,374.90  4/19/2022 4/19/2023 Y  S509964 SECURITY  ABSTRACT OF PA  INC  FINANCIAL  GUARANTEE  $750,000.00  4/28/2022 12/31/2022 Y  S510016 CITY OF  FARMINGTON  HILLS  PERFORMANCE $136,792.00  5/25/2022 5/25/2024 Y  S510037 LOUISVILLE- JEFFERSON  COUNTY METRO  PUBLIC WORKS  PERFORMANCE $3,000.00  6/7/2022 6/7/2023 Y    TOTAL  $61,736,611.43             





 






4889-9733-0207 v.9    Schedule 1.01 - 20  Existing Letters of Credit      LC Issuer:  JP Morgan Chase        LC Number Beneficiary LC Type  Current Amount  Issue Date Expire Date Auto Renew  NUSCGS018936 CITY OF  NAPERVILLE  PERFORMANCE $320,919.50  5/16/2019 3/28/2023 Y  NUSCGS018937 CITY OF  NAPERVILLE IL  PERFORMANCE $73,801.75  5/20/2019 12/31/2022 Y  NUSCGS018940 CITY OF  NAPEVILLE  PERFORMANCE $345,247.37  1/15/2020 12/31/2023 Y  NUSCGS018941 CITY OF  NAPERVILLE  PERFORMANCE $16,005.00  1/22/2020 12/31/2023 Y  NUSCGS018942 CITY OF  NAPERVILLE  PERFORMANCE $770.00  5/1/2020 5/1/2023 Y  NUSCGS018943 CITY OF  NAPERVILLE  PERFORMANCE $186,772.85  5/1/2020 5/1/2023 Y  NUSCGS018944 CITY OF  NAPERVILLE  PERFORMANCE $1,342,852.45  6/9/2021 6/8/2023 Y  NUSCGS035197 CITY OF  NAPERVILLE  PERFORMANCE $6,938,483.26  7/26/2021 6/1/2023 Y  NUSCGS035198 CITY OF NOVI PERFORMANCE $4,645,627.76  9/23/2021 9/22/2022 Y  NUSCGS035199 PGP TITLE INC DBA  PGP CLOSING  FINANCIAL  GUARANTEE  $150,000.00  11/3/2021 10/21/2022 Y  NUSCGS035200 CITY OF  NAPERVILLE  PERFORMANCE $1,167,131.68  4/14/2022 5/31/2023 Y  NUSCGS035201 CITY OF  NAPERVILLE  PERFORMANCE $39,539.50  4/14/2022 5/31/2023 Y  NUSCGS035202 CITY OF  NAPERVILLE  PERFORMANCE $34,221.00  4/14/2022 5/31/2023 Y  NUSCGS035204 BNP PARIBAS BACKSTOP LC  $29,568,551.22  6/9/2022 9/7/2023 Y    TOTAL  $44,829,923.34             





 






4889-9733-0207 v.9    Schedule 1.01 - 21  Existing Letters of Credit      LC Issuer:  PNC Bank         LC Number Beneficiary LC Type  Current Amount  Issue Date Expire Date Auto Renew  18103078 Upper Macungie  Township  PERFORMANCE $498,642.29  4/5/2006 4/6/2023 Y  18113919 TOWNSHIP OF  UPPER MACUNGIE  PERFORMANCE $50,000.06  10/14/2010 10/14/2022 Y  18113920 TOWNSHIP OF  UPPER MACUNGIE  PERFORMANCE $30,000.00  10/14/2010 10/14/2022 Y  18113921 TOWNSHIP OF  UPPER MACUNGIE  PERFORMANCE $120,000.00  10/14/2010 10/14/2022 Y  18113922 TOWNSHIP OF  UPPER MACUNGIE  PERFORMANCE $120,000.00  10/14/2010 10/14/2022 Y  18122076 JBG/LANDBAY G  L.L.C.  FINANCIAL  GUARANTEE  $7,698,254.97  8/14/2014 8/14/2022 Y  18126161 VILLAGE OF  WOODRIDGE  PERFORMANCE $160,933.53  8/5/2016 8/5/2022 Y  18126248 BALTIMORE  COUNTY  PERFORMANCE $180,774.00  9/20/2016 9/20/2022 Y  18126459 BALTIMORE  COUNTY  PERFORMANCE $3,500.00  9/20/2016 9/20/2022 Y  18126460 BALTIMORE  COUNTY  PERFORMANCE $41,382.00  9/20/2016 9/20/2022 Y  18127170 BOARD OF  SUPERVISORS OF  FAIR FAIRFAX  COUNTY VA  PERFORMANCE $190,500.00  1/26/2017 6/13/2023 Y  18128634 VILLAGE OF  WOODRIDGE  PERFORMANCE $184,194.42  9/27/2017 9/27/2022 Y  18130805 TOWNSHIP OF  WORCESTER  PERFORMANCE $930,728.95  10/10/2018 10/10/2022 Y  18130806 TOWNSHIP OF  WORCESTER  PERFORMANCE $767,557.83  10/10/2018 10/10/2022 Y  18131553 VILLAGE OF  WOODRIDGE  PERFORMANCE $19,509.50  4/9/2019 4/9/2023 Y  18103078 Upper Macungie PERFORMANCE $498,642.29  4/5/2006 4/6/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 22  Existing Letters of Credit    Township  18113919 TOWNSHIP OF  UPPER MACUNGIE  PERFORMANCE $50,000.06  10/14/2010 10/14/2022 Y  18113920 TOWNSHIP OF  UPPER MACUNGIE  PERFORMANCE $30,000.00  10/14/2010 10/14/2022 Y  18113921 TOWNSHIP OF  UPPER MACUNGIE  PERFORMANCE $120,000.00  10/14/2010 10/14/2022 Y  18113922 TOWNSHIP OF  UPPER MACUNGIE  PERFORMANCE $120,000.00  10/14/2010 10/14/2022 Y  18122076 JBG/LANDBAY G  L.L.C.  FINANCIAL  GUARANTEE  $7,698,254.97  8/14/2014 8/14/2022 Y  18126161 VILLAGE OF  WOODRIDGE  PERFORMANCE $160,933.53  8/5/2016 8/5/2022 Y  18126248 BALTIMORE  COUNTY  PERFORMANCE $180,774.00  9/20/2016 9/20/2022 Y  18126459 BALTIMORE  COUNTY  PERFORMANCE $3,500.00  9/20/2016 9/20/2022 Y  18126460 BALTIMORE  COUNTY  PERFORMANCE $41,382.00  9/20/2016 9/20/2022 Y  18127170 BOARD OF  SUPERVISORS OF  FAIR FAIRFAX  COUNTY VA  PERFORMANCE $190,500.00  1/26/2017 6/13/2023 Y  18128634 VILLAGE OF  WOODRIDGE  PERFORMANCE $184,194.42  9/27/2017 9/27/2022 Y  18130805 TOWNSHIP OF  WORCESTER  PERFORMANCE $930,728.95  10/10/2018 10/10/2022 Y  18130806 TOWNSHIP OF  WORCESTER  PERFORMANCE $767,557.83  10/10/2018 10/10/2022 Y  18131553 VILLAGE OF  WOODRIDGE  PERFORMANCE $19,509.50  4/9/2019 4/9/2023 Y    TOTAL $10,995,977.55             





 






4889-9733-0207 v.9    Schedule 1.01 - 23  Existing Letters of Credit      LC Issuer:  Truist Bank        LC Number Beneficiary LC Type  Current Amount  Issue Date Expire Date Auto Renew  70000000 CITY OF FRANKLIN PERFORMANCE $167,750.00  5/12/2014 5/12/2023 Y  70000060 CITY OF LEBANON PERFORMANCE $170,000.00  5/28/2014 5/27/2023 Y  70000192 CITY OF FRANKLIN PERFORMANCE $108,500.00  7/25/2014 7/25/2022 Y  70000434 CITY OF LEBANON PERFORMANCE $179,000.00  10/21/2014 10/21/2022 Y  70001057 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $651,000.00  6/23/2015 6/23/2023 Y  70001058 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $190,000.00  6/23/2015 6/23/2023 Y  70001060 CITY OF FRANKLIN PERFORMANCE $433,750.00  6/23/2015 6/23/2023 Y  70001376 TOWN OF JUPITER PERFORMANCE $520,000.00  10/30/2015 10/28/2022 Y  70001751 CITY OF FRANKLIN  TENNESSEE  AND/OR THE  FRANKLIN  MUNICIPAL  PLANNIN  PERFORMANCE $451,000.00  5/11/2016 5/12/2023 Y  70001923 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $192,000.00  7/25/2016 7/25/2022 Y  70001924 CITY O FLEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $918,000.00  7/25/2016 7/25/2022 Y  70002305 CITY OF  BRENTWOOD  PERFORMANCE $53,267.00  1/30/2017 1/30/2023 Y  70002519 CITY OF FRANKLIN PERFORMANCE $1,549,650.00  5/12/2017 5/11/2023 Y  70002531 CITY OF  BRENTWOOD TN  PERFORMANCE $87,007.00  5/18/2017 5/18/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 24  Existing Letters of Credit    70002595 HOLLAND &  KNIGHT LLP  FINANCIAL  GUARANTEE  $1,452,027.50  6/28/2017 6/28/2023 Y  70002677 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $300,000.00  8/21/2017 8/21/2022 Y  70002678 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $600,000.00  8/21/2017 8/21/2022 Y  70002690 CITY OF  HENDERSONVILLE  PERFORMANCE $140,000.00  8/25/2017 8/25/2022 Y  70002812 CITY OF MT JULIET PERFORMANCE $177,703.50  10/24/2017 10/23/2022 Y  70002813 CITY OF MT JULIET PERFORMANCE $498,394.50  10/24/2017 10/23/2022 Y  70002814 CITY OF MT JULIET PERFORMANCE $316,978.17  10/24/2017 10/23/2022 Y  70003155 ICARD MERRILL AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $1,872,007.50  7/16/2018 7/23/2022 Y  70003206 CITY OF  HENDERSONVILLE  PERFORMANCE $672,500.00  5/8/2018 5/8/2023 Y  70003479 CITY OF MT JULIET  PUBLIC WORKS  DEPT  PERFORMANCE $194,098.50  8/23/2018 8/23/2022 Y  70003480 CITY OF MT JULIET  PUBLIC WORKS  DEPARTMENT  PERFORMANCE $409,327.51  8/23/2018 8/23/2022 Y  70003660 GRAY ROBINSON  PA AS ESCROW  AGENT  FINANCIAL  GUARANTEE  $681,206.44  11/16/2018 11/16/2022 Y  70003790 FIRST AMERICAN  TITLE INSURANCE  COMPANY AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $697,620.00  1/25/2019 1/25/2023 Y  70003833 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $671,500.00  2/20/2019 2/20/2023 Y  70003834 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $149,000.00  2/20/2019 2/20/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 25  Existing Letters of Credit    70003862 ORANGE COUNTY  FL C/O ORANGE  COUNTY DEV ENG  PERFORMANCE $91,701.78  3/20/2019 7/7/2022    70004100 WINDERWEEDLE,  HAINES, WARD  AND WOODMAN  PA WAS ESCROW  AGENT  FINANCIAL  GUARANTEE  $361,800.00  7/3/2019 7/3/2022 Y  70004240 CITY OF  BRENTWOOD  PERFORMANCE $461,679.00  9/19/2019 9/20/2022 Y  70004417 FIRST AMERICAN  TITLE INSURANCE  COMPANY AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $1,167,190.83  12/4/2019 12/4/2022 Y  70004427 BROWARD  COUNTY BOARD  OF COUNTY  COMMISSIONERS  PERFORMANCE $21,400.00  12/20/2019 12/20/2022 Y  70004545 CITY OF  HOLLYWOOD FL,  BY AN THROUGH  TREASURY  DIVISION  PERFORMANCE $52,924.00  2/4/2020 12/31/2022 Y  70004573 CITY OF  HENDERSONVILLE  PERFORMANCE $535,100.00  2/19/2020 2/19/2023 Y  70004631 COUNTY  ADMINISTRATOR  BROWARD  COUNTY BOARD  OF COUNTY  COMMISSIONER  PERFORMANCE $1,659,000.00  3/18/2020 3/18/2023 Y  70004710 FIDELITY  NATIONAL  INSURANCE  COMPANY  FINANCIAL  GUARANTEE  $10,000,000.00  5/18/2020 5/18/2023 Y  70004769 ORANGE COUNTY  PUBLIC WORKS  PERFORMANCE $189,633.43  8/25/2020 4/25/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 26  Existing Letters of Credit    70004898 CITY OF  COLUMBIA  PERFORMANCE $390,000.00  9/17/2020 9/15/2022 Y  70004902 ORANGE COUNTY PERFORMANCE $74,717.40  10/7/2020 7/7/2022    70004951 CITY OF  HOLLYWOOD  PERFORMANCE $549,240.00  11/6/2020 1/6/2023 Y  70004952 CITY OF  HOLLYWOOD  PERFORMANCE $1,099,713.00  11/6/2020 11/6/2022 Y  70004960 CITY OF  HOLLYWOOD  PERFORMANCE $52,020.00  11/6/2020 11/6/2022 Y  70004961 CITY OF  HOLLYWOOD  PERFORMANCE $60,000.00  11/6/2020 11/6/2022 Y  70004962 CITY OF  HOLLYWOOD  PERFORMANCE $1,145,910.00  11/6/2020 11/9/2022 Y  70004963 CITY OF  HOLLYWOOD  PERFORMANCE $1,050,000.00  11/6/2020 11/6/2022 Y  70004986 CITY OF MT JULIET  PUBLIC WORKS  DEPT  PERFORMANCE $91,434.00  11/23/2020 11/23/2022 Y  70004987 CITY OF MT JULIET PERFORMANCE $285,372.59  11/23/2020 11/23/2022 Y  70005024 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $620,265.00  12/17/2020 12/17/2022 Y  70005025 CITY OF LEBANON  ENGINEERING  DEPT  PERFORMANCE $1,900,360.00  12/17/2020 12/17/2022 Y  70005093 ORANGE COUNTY  FL  PERFORMANCE $279,390.00  2/24/2021 3/15/2023 Y  70005121 ORANGE COUNTY PERFORMANCE $29,700.00  2/23/2021 2/23/2023 Y  70005129 SCHUTTS &  BOWEN LLP AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $100,000.00  2/9/2021 2/9/2023 Y  70005196 ORANGE COUNTY PERFORMANCE $2,843,902.85  3/29/2021 4/8/2023 Y  70005240 CITY OF LEBANON PERFORMANCE $104,000.00  4/13/2021 4/13/2023 Y  70005241 CITY OF LEBANON  ENGINEERING  PERFORMANCE $749,000.00  4/13/2021 4/13/2023 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 27  Existing Letters of Credit    DEPARTMENT  70005242 CITY OF  COLUMBIA  PERFORMANCE $254,000.00  4/16/2021 4/16/2023 Y  70005253 SCHUTTS &  BOWEN LLC AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $250,000.00  4/21/2021 4/21/2023 Y  70005282 GRIMES HAWKINS  GLADFELTER &  GALVANO PL AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $1,200,000.00  5/11/2021 5/11/2023 Y  70005283 CITY OF MT JULIET  PUBLIC WORKS  DEPT  PERFORMANCE $378,974.22  5/5/2021 5/5/2023 Y  70005284 CITY OF MTJULIET  PUBLIC WORKS  DETP  PERFORMANCE $131,724.00  5/5/2021 5/5/2023 Y  70005313 FIRST AMERICAN  TITLE INSURANCE  COMPANY  FINANCIAL  GUARANTEE  $1,000,000.00  5/26/2021 5/26/2023 Y  70005314 BROWARD  COUNTY  PERFORMANCE $70,000.00  5/28/2021 5/28/2023 Y  70005385 SHUTTS, & BOWEN  LLP AS ESCROW  AGENT  FINANCIAL  GUARANTEE  $1,304,039.57  6/25/2021 6/23/2023 Y  70005427 ORANGE COUNTY,  FLORIDA  PERFORMANCE $183,000.00  10/13/2021 10/13/2022 Y  70005484 SHUTTS & BOWEN  LLP AS ESCROW  AGENT  FINANCIAL  GUARANTEE  $1,250,000.00  8/16/2021 8/16/2023 Y  70005488 DEAN, MEAD,  EGERTON,  BLOODWORTH,  CAPOUANO &  BOZARTH PA  FINANCIAL  GUARANTEE  $457,500.00  8/18/2021 8/18/2022 Y  70005505 TOWN OF  MONTVERDE  PERFORMANCE $579,867.00  8/24/2021 8/24/2022 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 28  Existing Letters of Credit    70005539 WEST WILSON  UTILITY  PERFORMANCE $470,550.00  9/9/2021 6/22/2023    70005601 ORANGE COUNTY PERFORMANCE $182,070.00  12/13/2021 12/13/2022 Y  70005612 HENDERSON,  FRANKLIN,  STARNES & HOLT  PA AS ESCROW  AGENT  FINANCIAL  GUARANTEE  $2,225,000.00  10/19/2021 10/19/2022 Y  70005642 CITY OF CAPE  CORAL  PERFORMANCE $1,239,685.70  11/19/2021 11/19/2022 Y  70005645 CITY OF  COLUMBIA  PERFORMANCE $207,000.00  11/8/2021 11/8/2022 Y  70005673 ORANGE COUNTY PERFORMANCE $237,552.91  11/19/2021 12/1/2022 Y  70005732 CITY OF  COLUMBIA  PERFORMANCE $372,000.00  12/6/2021 12/6/2022 Y  70005747 WHARTON LAW  GROPU PA AS  ESCROW AGENT  FINANCIAL  GUARANTEE  $500,000.00  12/9/2021 12/9/2022 Y  70005804 SONTERRA  MUNICIPAL  UTILITY DISTRICT  PERFORMANCE $2,005,343.00  1/21/2022 10/1/2022 Y  75000324 SHUTTS & BOWEN  LLP  FINANCIAL  GUARANTEE  $50,000.00  2/28/2022 2/28/2023 Y  75000325 SHUTTS & BOWEN  LLP  FINANCIAL  GUARANTEE  $175,000.00  2/28/2022 2/28/2023 Y  75000407 ORANGE COUNTY  FLORIDA  PERFORMANCE $21,869.03  4/5/2022 7/21/2022 Y  75000432 FIRST AMERICAN  TITLE INSURANCE  COMPANY  FINANCIAL  GUARANTEE  $1,500,000.00  4/11/2022 7/1/2024 Y  75000455 GRAYROBINSON  PA  FINANCIAL  GUARANTEE  $1,750,000.00  4/18/2022 4/18/2023 Y  F850313 State of New Jersey FINANCIAL  GUARANTEE  $300,000.00  6/7/2007 6/10/2023 Y  F854137 Falk Law Firm PA FINANCIAL  GUARANTEE  $3,000,000.00  10/7/2009 10/8/2022 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 29  Existing Letters of Credit    F854351 City of Lebanon PERFORMANCE $183,000.00  1/11/2010 1/11/2023 Y  F854699 CITY OF LEBANON  ENGINEERING  DEPARTMENT  PERFORMANCE $217,500.00  6/18/2010 6/18/2023 Y  F856544 City of Franklin PERFORMANCE $51,000.00  5/16/2013 5/16/2023 Y  F856751 CITY OF LEBANON PERFORMANCE $320,000.00  10/10/2013 10/8/2022 Y  F856752 CITY OF LEBANON PERFORMANCE $221,500.00  10/10/2013 10/8/2022 Y  F856797 City of Franklin PERFORMANCE $25,000.00  11/8/2013 11/8/2022 Y  F856884 CITY OF FRANKLIN PERFORMANCE $253,750.00  1/17/2014 11/7/2022 Y  F856929 CITY OF FRANKLIN PERFORMANCE $315,000.00  2/21/2014 2/18/2023 Y  F856981 CITY OF LEBANON PERFORMANCE $134,000.00  3/26/2014 3/25/2023 Y    TOTAL  $63,484,666.93     





 






4889-9733-0207 v.9    Schedule 1.01 - 30  Existing Letters of Credit      LC Issuer:  Wells Fargo Bank NA        LC Number Beneficiary LC Type  Current Amount  Issue Date Expire Date Auto Renew  IS000010508U CITY OF PRIOR LAKE PERFORMANCE $221,530.00  8/14/2017 8/14/2022 Y  IS000010510U CITY OF PRIOR LAKE PERFORMANCE $638,221.20  8/14/2017 8/14/2022 Y  IS000049139U CITY OF PRIOR LAKE  COMMUNITY  DEVELOPMENT  PERFORMANCE $517,929.12  7/20/2018 7/20/2022 Y  IS000077045U TOWN OF FUQUAY- VARNIA  PERFORMANCE $56,568.75  3/20/2019 3/20/2023 Y  IS000077048U TOWN OF FUQUAY- VARNIA  PERFORMANCE $73,156.32  3/20/2019 3/20/2023 Y  IS000086747U INDIAN RIVER  COUNTY  PERFORMANCE $262,385.00  6/12/2019 9/18/2023 Y  IS000089249U CITY OF MAPLE  GROVE  DCOMMUNITY DEV  PERFORMANCE $83,000.00  7/10/2019 2/1/2023 Y  IS000089257U CITY OF MAPLE  GROVE  DCOMMUNITY DEV  PERFORMANCE $610,000.00  7/10/2019 2/1/2023 Y  IS000094155U CITY OF COTTAGE  GROVE  PERFORMANCE $29,003.00  8/15/2019 8/15/2022 Y  IS000096012U INDIAN RIVER  COUNTY  PERFORMANCE $139,630.75  8/23/2019 11/30/2023 Y  IS000096465U CITY OF COTTAGE  GROVE  PERFORMANCE $38,475.00  8/27/2019 8/27/2022 Y  IS000096468U CITY OF COTTAGE  GROVE  PERFORMANCE $189,283.00  8/27/2019 8/27/2022 Y  IS000099517U TOWN OF FUQUAY- VARINA  PERFORMANCE $49,946.05  9/23/2019 9/23/2022 Y  IS000099673U TOWN OF FUQUAY- VARINA  PERFORMANCE $50,283.25  9/23/2019 9/23/2022 Y  IS000099674U TOWN OF FUQUAY- VARINA  PERFORMANCE $119,581.25  9/23/2019 9/23/2022 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 31  Existing Letters of Credit    IS000108534U INDIAN RIVER  COUNTY  PERFORMANCE $59,848.95  11/25/2019 2/27/2023    IS000116138U TOWN OF FUQUAY- VARINA  PERFORMANCE $665,018.25  1/17/2020 1/17/2023 Y  IS000127071U TOWN OF FUQUAY- VARINA  PERFORMANCE $52,229.30  4/21/2020 4/21/2023 Y  IS000141022U INDIAN RIVER  COUNTY  PERFORMANCE $16,295.00  8/24/2020 11/21/2022 Y  IS000142047U CITY OF SAVAGE PERFORMANCE $1,416,704.00  8/28/2020 8/28/2022 Y  IS000164233U THE STERLING  RANCH COMMUNITY  AUTHORITY  PERFORMANCE $2,364,046.00  12/29/2020 12/29/2022 Y  IS000182892U THE BOARD OF  COUNTY  COMMISSIONERS OF  THE COUNTY OF  DOUGLAS, CO  PERFORMANCE $141,030.55  4/6/2021 4/6/2023 Y  IS000182893U THE BOARD OF  COMMISSIONERS OF  THE COUNTY OF  DOUGLAS CO  PERFORMANCE $157,015.00  4/6/2021 4/6/2023 Y  IS000184281U CITY OF COTTAGE  GROVE  PERFORMANCE $222,325.00  4/14/2021 4/14/2023 Y  IS000184307U CITY OF SHAKOPEE PERFORMANCE $1,454,700.00  4/13/2021 4/13/2023 Y  IS000189534U CITY OF SHAKOPEE PERFORMANCE $63,126.00  5/5/2021 5/5/2023 Y  IS000193692U CITY OF COTTAGE  GROVE  PERFORMANCE $120,382.50  5/19/2021 5/19/2023 Y  IS000193705U CITY OF COTTAGE  GROVE  PERFORMANCE $1,704,182.00  5/19/2021 5/19/2023 Y  IS000199605U THE STERLING  RANCH COMMUNITY  AUTHORITY BOARD  PERFORMANCE $4,440,779.00  6/14/2021 6/14/2023 Y  IS000211609U LAND TITLE  GUARANTEE  COMPANY FOR THE  BENEFIT OF  FINANCIAL  GUARANTEE  $400,000.00  8/20/2021 8/20/2022 Y  





 






4889-9733-0207 v.9    Schedule 1.01 - 32  Existing Letters of Credit    RICHMOND  AMERICA  IS000216937U CITY EAGAN, CITY  CLERK  PERFORMANCE $340,775.00  8/23/2021 8/23/2022 Y  IS000225419U CITY OF LAKEVILLE PERFORMANCE $1,835,942.99  9/27/2021 11/30/2022 Y  IS000240508U CITY OF PRIOR LAKE PERFORMANCE $136,534.00  11/22/2021 11/22/2022 Y  IS000278578U INDIAN RIVER  COUNTY  PERFORMANCE $923,406.23  4/28/2022 7/19/2023   IS000288316 CB INDEPENDENCE  HOLDING COMPANY  PERFORMANCE $2,000,000.00  5/25/2022 5/25/2023 Y  IS000290843U THE TRAVELERS  INDEMNITY  COMPANY  RISK &  INSURANCE  $300,000.00  6/6/2022 6/6/2023 Y  IS000290867U PACIFIC EMPLOYEES  INSURANCE  COMPANY  FINANCIAL  GUARANTEE  $403,133.00  6/7/2022 6/7/2023 Y  IS000290891U WAYNE COUNTY  DEPARTMENT OF  PUBLIC WORKS  FINANCIAL  GUARANTEE  $125,000.00  6/6/2022 6/6/2023 Y  IS000292215U CHARLESTON  COMMISSIONERS OF  PUBLIC WORKS  PERFORMANCE $22,503.00  6/7/2022 6/7/2023 Y  IS0333349U CITY OF  BRENTWOOD  PERFORMANCE $81,429.00  9/3/2015 9/3/2022 Y  IS0342670U CITY OF  BRENTWOOD  PERFORMANCE $165,064.00  1/15/2016 10/13/2022 Y  IS0432338U CITY OF  BRENTWOOD  PERFORMANCE $60,709.00  6/16/2016 6/16/2023 Y    TOTAL $22,751,170.46       





 






4889-9733-0207 v.9    Schedule 1.01 - 33  Existing Letters of Credit        LC Issuer Current Amount  BANK OF AMERICA $61,831,488.77  COMERICA BANK $35,957,874.04  FIFTH THIRD BANK,  NATIONAL  ASSOCIATION  $61,736,611.43  JPMORGAN CHASE $44,829,923.34  PNC BANK $10,995,977.55  TRUIST BANK $63,484,666.93  WELLS FARGO BANK  NA $22,751,170.46  TOTAL $301,587,712.52      





 






4889-9733-0207 v.9     Schedule 2.01A   Commitments and Applicable Percentages    SCHEDULE 2.01A  COMMITMENTS  AND APPLICABLE PERCENTAGES    Lender Commitment Applicable  Percentage  Bank of America, N.A. $113,000,000.00 9.040000000%  JPMorgan Chase Bank, N.A.  $113,000,000.00  9.040000000%  Citibank, N.A.  $113,000,000.00  9.040000000%  Mizuho Bank, Ltd.  $113,000,000.00  9.040000000%  Truist Bank $113,000,000.00 9.040000000%  Comerica Bank $113,000,000.00 9.040000000%  PNC Bank, National Association $113,000,000.00 9.040000000%  U.S. Bank National Association $113,000,000.00 9.040000000%  Wells Fargo Bank, National Association $113,000,000.00 9.040000000%  Fifth Third Bank, National Association $77,666,666.67 6.213333334%  Regions Bank $77,666,666.67 6.213333333%  TD Bank, N.A. $77,666,666.66 6.213333333%  Total $1,250,000,000 100.000000000%  





 






4889-9733-0207 v.9     Schedule 2.01B   Letter of Credit Commitments    SCHEDULE 2.01B  LETTER OF CREDIT COMMITMENTS    L/C Issuer Letter of Credit Commitment  Bank of America, N.A. $113,000,000.00  JPMorgan Chase Bank, N.A.  $113,000,000.00  Citibank, N.A.  $113,000,000.00  Mizuho Bank, Ltd.  $113,000,000.00  Truist Bank $113,000,000.00  Comerica Bank $113,000,000.00  PNC Bank, National Association $113,000,000.00  U.S. Bank National Association $113,000,000.00  Wells Fargo Bank, National Association $113,000,000.00  Fifth Third Bank, National Association $77,666,666.67  Regions Bank $77,666,666.67  TD Bank, N.A. $77,666,666.66  





 






4889-9733-0207 v.9     Schedule 5.09 - 1   Existing Liens    SCHEDULE 5.09    EXISTING LIENS    None. 





 






4889-9733-0207 v.9     Schedule 5.10 - 1   Existing Indebtedness    SCHEDULE 5.10    EXISTING INDEBTEDNESS    None. 





 






4889-9733-0207 v.9     Schedule 5.11 - 1   Litigation    SCHEDULE 5.11    LITIGATION    None. 





 






4889-9733-0207 v.9     Schedule 5.15 - 1   Subsidiaries    SCHEDULE 5.15    SUBSIDIARIES    * Denotes Material Subsidiary under the Third Amended and Restated Credit Agreement  ** Denotes Borrower    Name  America's Mortgage Cooperative, LLC  Anthem Arizona L.L.C.  Anthem Community Council, Inc. (NV)  Anthem Country Club, Inc.  BAY VISTA AT MEADOW PARK, L.P.  Beachline North Residential, LLC  BENICIA CS DEVELOPERS, LLC  Cave Buttes Development Partners, LLC  CENTEX CONSTRUCTION OF NEW MEXICO, LLC  CENTEX DEVELOPMENT COMPANY, L.P.*  CENTEX FINANCIAL SERVICES, LLC  CENTEX HOMES*  CENTEX HOMES, INC.  CENTEX HOMES, LLC (f/k/a Calton Homes, LLC)  CENTEX INTERNATIONAL II, LLC*  CENTEX LLC*  CENTEX MORTGAGE, TITLE AND INSURANCE GROUP, LLC  CENTEX MULTI-FAMILY COMMUNITIES, LLC  CENTEX MULTI-FAMILY INVESTMENTS, L.P.  CENTEX MULTI-FAMILY ST. PETE HOLDING COMPANY, L.L.C.  CENTEX REAL ESTATE CONSTRUCTION COMPANY, LLC*  CENTEX REAL ESTATE CORPORATION*  CENTEX REALTY, INC.  CENTEX SERVICE COMPANY, LLC  CENTEX TITLE & ANCILLARY SERVICES, LLC  CENTEX/TAYLOR, LLC  Chauncy Lake Trustee, LLC  CL OCEAN VILLAS, LLC  Cold Brook Crossing Trustee LLC  COMMERCE LAND TITLE AGENCY, LLC  Conestoga Golf Club LLC  Contractors Insurance Company of North America, Inc., a Risk Retention Group  Corte Bella Country Club Association, Inc.  CREEKSIDE AT MEADOW PARK, L.P.  





 






4889-9733-0207 v.9     Schedule 5.15 - 2   Subsidiaries    CTX MORTGAGE COMPANY, LLC  Dean Realty Company  Del E. Webb Land Conservancy  Del Webb California Corp.  Del Webb Communities of Illinois, Inc.  Del Webb Communities, Inc.*  Del Webb Construction Services Co.  Del Webb Corporation*  Del Webb Home Construction, Inc.  Del Webb Homes, Inc.  Del Webb Limited Holding Co.  Del Webb Southwest Co.  Del Webb Texas Limited Partnership  Del Webb's Coventry Homes Construction Co.  Del Webb's Coventry Homes of Nevada, Inc.  Del Webb's Coventry Homes, Inc.*  DiVosta Building, LLC  DiVosta Homes Holdings, LLC*  DiVosta Homes, L.P.*  DR Super Block 1 South, LLC  DW Homebuilding Co.  Grand/Sakwa Orchards of Lyon, LLC  Innovative Construction Group LLC  JNN Properties LLC  Kyle Acquisition Group, LLC  LCD COMMUNICATIONS LLC  Marquette Title Insurance Company  MBM Properties LLC  MEADOWBROOK DEVELOPMENT COMPANY, LLC  Nomas LLC*  North American Builders Indemnity Company  North Valley Enterprises, LLC  NOVATO COMMUNITY PARTNERS, LLC  OPENBAND AT LANSDOWNE L.L.C.  Pave It Forward North, LLC  PCD Realty LLC  PCIC Insurance Agency, Inc.  Pennington Crossing Trustee LLC  PG&M Orlando, LLC  PGP Escrow Inc.  PGP Investments, LLC  





 






4889-9733-0207 v.9     Schedule 5.15 - 3   Subsidiaries    PGP TITLE OF FLORIDA, INC.  PGP Title of Ohio, Inc.  PGP TITLE, INC.  PGP TITLE, LLC  PH 19 Corporation*  PH 43 LLC  PH 50 LLC  PH 55 LLC  PH Highland Lakes, LLC  PH Oakwood Trails, LLC*  PH Relocation Services LLC  PH1 Corporation*  PH16, L.P.  PH17, L.P.  PH3 Corporation  PH4 Corporation  PHM Investments LLC  PHM Investment Holding Co., Inc.  PHM New Jersey Development, LLC  PHM Union New Jersey Development Urban Renewal, LLC  PHNE Business Trust  PHT Operating Company LLC  PHTB Summerlin LLC*  PL Roseville, LLC  PN II, Inc.*  Potomac Yard Development LLC  Potomac Yard Development Sole Member LLC  PREMIER LAND TITLE INSURANCE COMPANY  Preserve I, Inc.  Preserve II, Inc.*  Pulte Arizona Services, Inc.*  Pulte Building Services LLC  Pulte Building Systems Holding Company, L.L.C.  Pulte Building Systems, L.L.C. (AZ)  Pulte Building Systems, L.L.C. (NV)  Pulte Communities NJ, Limited Partnership  Pulte Development Corporation*  Pulte Development New Mexico, Inc.*  Pulte Diversified Companies, Inc.  Pulte Diversified Services, Inc.  Pulte Financial Companies, Inc.  





 






4889-9733-0207 v.9     Schedule 5.15 - 4   Subsidiaries    Pulte Financial Services LLC  Pulte Georgia Holdings LLC  Pulte Home Corporation*  Pulte Home Corporation of The Delaware Valley  Pulte Home Sciences LLC  Pulte Homes of Greater Kansas City, Inc.  Pulte Homes of Indiana, LLC*  Pulte Homes of Michigan LLC*  Pulte Homes of Minnesota LLC*  Pulte Homes of New England LLC*  Pulte Homes of New Mexico, Inc.*  Pulte Homes of New York LLC  Pulte Homes of NJ, Limited Partnership*  Pulte Homes of Ohio LLC*  Pulte Homes of PA, Limited Partnership*  Pulte Homes of South Carolina, Inc.  PULTE HOMES OF ST. LOUIS, LLC*  Pulte Homes of Texas, L.P.*  Pulte Homes of Washington, Inc.*  Pulte Homes Tennessee, Inc. (f.k.a. Radnor Homes, Inc.)*  Pulte Homes Tennessee Limited Partnership*  Pulte Interiors, LLC  Pulte International Caribbean Corp.  Pulte International Corporation  Pulte Land Company, LLC  Pulte Mortgage LLC  Pulte Nevada I LLC  Pulte Payroll Corporation  Pulte Purchasing Corporation  Pulte Realty Holdings, Inc.*  Pulte Realty Limited Partnership*  Pulte Realty of Connecticut, Inc.  Pulte Realty of Georgia, Inc. (f.k.a Edinburgh Realty Corporation)  Pulte Realty of New York, Inc.  Pulte Realty of North Florida LLC  Pulte Realty of West Florida, LLC  Pulte Realty, Inc.  Pulte Services Corporation  Pulte Texas Holdings LLC*  Pulte/BP Murrieta Hills, LLC*  PulteGroup, Inc.**  





 






4889-9733-0207 v.9     Schedule 5.15 - 5   Subsidiaries    Rancho Diamante Investments, LLC  RCC Augusta, LLC  RCC Brookside Epic, LLC  Related Gordon Armstrong Associates LLC  RIVERPARK LEGACY, LLC  RN Acquisition 2 Corp.*  Shiloh Farm Investments, LLC  Sierra Canyon Association  Stone Creek Golf Club LLC  Sun City Georgetown Community Association, Inc.  Sun City Grand Community Association, Inc.  Sun City Hilton Head Community Association, Inc.  Tallmadge Woods STP Associates LLC  Terravita Home Construction Co.  THE JONES COMPANY BUILDING SERVICES, LLC  Title Plant Corporation  Umerley Manor Oaks LLC  Upper Gwynedd Development, Limited Partnership  WH ON YOUR LOT, LLC  WINDEMERE BLC LAND COMPANY LLC          





 






4889-9733-0207 v.9     Schedule 5.21 - 1   Investments    SCHEDULE 5.21    INVESTMENTS    None. 





 






4889-9733-0207 v.9     Schedule 5.25   Labor Contracts and Disputes    SCHEDULE 5.25    LABOR CONTRACTS AND DISPUTES    None. 





 






4889-9733-0207 v.9     Schedule 10.02 - 1   Administrative Agent’s Office; Certain Addresses for Notices    SCHEDULE 10.02  ADMINISTRATIVE AGENT’S OFFICE;  CERTAIN ADDRESSES FOR NOTICES    BORROWER:    PulteGroup, Inc.  3350 Peachtree Road NE, Suite 150  Atlanta, GA 30326  Attention: Bryce Langen  Telephone: (404) 464-9047  Facsimile: (404) 978-6773  Electronic Mail: Bryce.Langen@pultegroup.com; treasury@pultegroup.com  Taxpayer Identification Number: 38-2766606  Websites (see Section 6.01):   - http://pultegroupinc.com/investors/financial-information/sec-filings  - http://www.sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0000822416    ADMINISTRATIVE AGENT:    Administrative Agent’s Office   (for payments and Requests for Credit Extensions):    Bank of America, N.A.  900 W. Trade St.  Charlotte, NC 28255  Mail Code: NC1-026-06-04  Attention: Kennedy Diggs  Telephone: 980-387-4805  Electronic Mail: kennedy.diggs@bofa.com    Other Notices as Administrative Agent:    Bank of America, N.A.  2 Bryant Park  1100 Avenue of the Americas  Mail Code: NY1-540-07-10  New York, NY 10036  Attention: Paley Chen  Telephone: (646) 556-0753  Facsimile: (212) 548-8944  Electronic Mail: Paley.Chen@bofa.com  





 






4889-9733-0207 v.9     Schedule 10.02 - 2   Administrative Agent’s Office; Certain Addresses for Notices    L/C ISSUERS:    Bank of America, N.A.  Trade Operations  1 Fleet Way  Mail Code: PA6-580-02-30  Scranton, PA 18507  Attention: Trade Client Service Team  Telephone: (570) 496-9619  Telecopier: (800) 755-8740  Electronic Mail: tradeclientserviceteamUS@bofa.com    JPMorgan Chase Bank, N.A.  10420 Highland Manor Drive, Floor 4  Tampa, FL 33610  Attention: James Alonzo  Telephone: (813) 432-6339  Facsimile: (201) 244-3885  Electronic Mail: James.Alonzo@jpmchase.com    Citibank, N.A.  One Penns Way, Ops II  New Castle, DE 19720  Attention: Gopinath Elogovan  Telephone: (201) 472-4024  Facsimile: (212) 994-0847  Electronic Mail: Global.Loans.LCRecon@citi.com    Mizuho Bank, Ltd.  1800 Plaza Ten/Harborside Financial Ctr.  Jersey City, NJ 07311  Attention: Dina Kalnitsky  Telephone: (201) 626-9414  Facsimile: (201) 626-9941  Electronic Mail: LAU_USCorp3@mizuhocbus.com    Truist Bank  245 Peachtree Center Avenue  Suite/Mail Code: GA-ATL-3707  Atlanta, GA 30303  Attention: Aimee Maier  Telephone: (404) 532-0947  Facsimile: (404) 588-8129  Electronic Mail:               





 






4889-9733-0207 v.9     Schedule 10.02 - 3   Administrative Agent’s Office; Certain Addresses for Notices    Comerica Bank  411 West Lafayette  Suite/Mail Code: 3341  Detroit, MI 48226  Attention: Gail Matheson  Telephone: (313) 222-4956  Facsimile: (313) 222-9324  Electronic Mail: gmmatheson@comerica.com    Fifth Third Bank, National Association  5050 Kingsley Drive  Mail Code: 1MOC2B  Cincinnati, OH 45227  Attention: Michele Kraus  Telephone: (513) 358-1472  Facsimile: (513) 358-3480  Electronic Mail: Michele.kraus@53.com    PNC Bank, National Association  500 First Avenue, Fourth Floor  Mail Stop: P7-PFSC-04-V  Pittsburgh, PA 15219  Attention: Nicole Curtin  Telephone: (412) 807-3413  Facsimile: (888) 614-9134  Electronic Mail: Nicole.curtin@pnc.om    TD Bank, N.A.  6000 Atrium Way  Mt. Laurel, NJ 08054  Attention: Specialized Services/Investor Processing  Telephone: (856) 533-4885 (Primary); (856) 533-6616 (Secondary)  Facsimile: (856) 533-7128  Electronic Mail: SpecializedServicing@td.com    U.S. Bank National Association  NSLS Deal Administration  Deal Administrator  555 Oak Street  Portland, OR 97204  Telephone: 920-237-7601  Facsimile: 866-721-7062  Email: Clssyndicationservicesteam@usbank.com    Wells Fargo Bank, National Association  2030 Main Street, Suite 800  Irvine, CA 92614  Attention: Stacy Novack  Telephone: (949) 251-4358  Facsimile: (949) 851-9728  Electronic Mail: Novacks@wellsfargo.com  





 






4889-9733-0207 v.9     Schedule 10.02 - 4   Administrative Agent’s Office; Certain Addresses for Notices      Regions Bank  201 Milan Parkway, 1st Floor  Birmingham, AL 35211  Attention: Melissa G. Arnold  Telephone: (205) 655-6062  Facsimile: (205) 261-7970  Electronic Mail: Nhbfadmin@regions.com        





 






4889-9733-0207 v.9    Exhibit A - 1  Form of Loan Notice    EXHIBIT A  FORM OF LOAN NOTICE  Date: ___________, _____  To: Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:    Reference is made to that certain Third Amended and Restated Credit Agreement, dated as of June 14,  2022 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time,  the “Agreement;” the terms defined therein being used herein as therein defined), among PulteGroup,  Inc., a Michigan corporation , the Lenders from time to time party thereto, and Bank of America, N.A., as  Administrative Agent and an L/C Issuer.  The undersigned hereby requests (select one):   A Borrowing of Loans  A conversion or continuation of Loans  1. On   (a Business Day).  2. In the amount of $ .  3. Comprised of   .    [Type of Loan requested]  4. For Term SOFR Rate Loans: with an Interest Period of ____ months.  The Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01  of the Agreement.  PULTEGROUP, INC.  By:    Name:    Title:      





 






4889-9733-0207 v.9    Exhibit B - 1  Form of [[Third] Amended and Restated] Note    EXHIBIT B    FORM OF [[THIRD] AMENDED AND RESTATED] NOTE     FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to  _____________________ or registered assigns (“Lender”), in accordance with the provisions of the  Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by Lender  to Borrower under that certain Third Amended and Restated Credit Agreement, dated as of June 14, 2022  (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the  “Agreement;” the terms defined therein being used herein as therein defined), among Borrower, the  Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C  Issuer.  Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such  Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the  Agreement. All payments of principal and interest shall be made to Administrative Agent for the account  of Lender in Dollars in immediately available funds at Administrative Agent’s Office. If any amount is  not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand,  from the due date thereof until the date of actual payment (and before as well as after judgment)  computed at the per annum rate set forth in the Agreement.   This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be  prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled  to the benefits of the Guaranty. Upon the occurrence and continuation of one or more of the Events of  Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may  be declared to be, immediately due and payable all as provided in the Agreement. Loans made by Lender  shall be evidenced by one or more loan accounts or records maintained by Lender in the ordinary course  of business. Lender may also attach schedules to this Note and endorse thereon the date, amount and  maturity of its Loans and payments with respect thereto.  Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand  and notice of protest, demand, dishonor and non-payment of this Note.  [This [Third] Amended and Restated Note amends, restates, supersedes, and replaces that certain [Second  Amended and Restated] Note, dated as of June 22, 2018, made by Borrower and payable to Lender,  executed pursuant to the Existing Credit Agreement.]    THIS [[THIRD] AMENDED AND RESTATED] NOTE SHALL BE GOVERNED BY AND  CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.          





 






4889-9733-0207 v.9    Exhibit B - 2  Form of [[Third] Amended and Restated] Note    PULTEGROUP, INC.  By:    Name:    Title:                                         





 






4889-9733-0207 v.9    Exhibit B - 3  Form of [[Third] Amended and Restated] Note    LOANS AND PAYMENTS WITH RESPECT THERETO  Date  Type of Loan  Made  Amount of  Loan Made  End of  Interest  Period  Amount of  Principal or  Interest Paid  This Date  Outstanding  Principal  Balance This  Date  Notation  Made By                                                                                                                                                                                                                                                                                





 






4889-9733-0207 v.9    Exhibit C - 1  Form of Compliance Certificate    EXHIBIT C  FORM OF COMPLIANCE CERTIFICATE  Financial Statement Date ________, _____  To: Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Third Amended and Restated Credit Agreement, dated as of June 14,  2022 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time,  the “Agreement;” the terms defined therein being used herein as therein defined), among PulteGroup,  Inc., a Michigan corporation (“Borrower”), the Lenders from time to time party thereto, and Bank of  America, N.A., as Administrative Agent and an L/C Issuer.  The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the  _______________________ of Borrower, and that, as such, he/she is authorized to execute and deliver  this Certificate to Administrative Agent on the behalf of Borrower, and that:  [Use following paragraph 1 for fiscal year-end financial statements]  1. Borrower has delivered the year-end audited financial statements required by Section 6.01(a) of  the Agreement for the fiscal year of Borrower ended as of the above date, together with the report and  opinion of an independent certified public accountant required by such section.  [Use following paragraph 1 for fiscal quarter-end financial statements]  1. Borrower has delivered the unaudited financial statements required by Section 6.01(b) of the  Agreement for the fiscal quarter of Borrower ended as of the above date. Such financial statements fairly  present the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in  accordance with GAAP as at such date and for such period, subject only to normal year-end audit  adjustments and the absence of footnotes.  2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or  has caused to be made under his/her supervision, a detailed review of the transactions and condition  (financial or otherwise) of Borrower during the accounting period covered by such financial statements.  3. A review of the activities of Borrower during such fiscal period has been made under the  supervision of the undersigned with a view to determining whether during such fiscal period Borrower  performed and observed all its Obligations under the Credit Documents, and   [select one:]  [to the best knowledge of the undersigned, during such fiscal period Borrower performed and  observed each covenant and condition of the Credit Documents applicable to it, and no Default has  occurred and is continuing.]  --or--  





 






4889-9733-0207 v.9    Exhibit C - 2  Form of Compliance Certificate    [to the best knowledge of the undersigned, during such fiscal period the following covenants or  conditions have not been performed or observed and the following is a list of each such Default  and its nature and status and what action Borrower proposes to take with respect thereto:]  4. The representations and warranties of Borrower contained in Article V of the Agreement, and any  representations and warranties of any Credit Party that are contained in any document furnished at any  time under or in connection with the Credit Documents, are true and correct in all material respects  (without duplication of any materiality qualifiers set forth therein) on and as of the date hereof, except to  the extent that such representations and warranties specifically refer to an earlier date, in which case they  are true and correct in all material respects (without duplication of any materiality qualifiers set forth  therein) as of such earlier date, and except that for purposes of this Compliance Certificate, the  representations and warranties contained in subsections (a) and (b) of Section 5.01 of the Agreement  shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b),  respectively, of Section 6.01 of the Agreement, including the statements in connection with which this  Compliance Certificate is delivered.  5. Attached hereto as Schedule 1 are calculations demonstrating compliance by the Credit Parties  with the financial covenants contained in Section 6.02 of the Agreement.  IN WITNESS WHEREOF, the undersigned has executed this Certificate as of _____________, _____.  PULTEGROUP, INC.  By:    Name:    Title:    





 






4889-9733-0207 v.9    Exhibit C - 4  Form of Compliance Certificate    For the Quarter/Year ended ___________________ (“Statement Date”)  SCHEDULE 1  to the Compliance Certificate  ($ in 000’s)  I. Section 6.02(a) – Debt to Capitalization Ratio.  A. Indebtedness:   $_______________  B. 50% of Qualified Subordinated Debt: $   C. Unrestricted Cash in Excess of $25,000,000: $   D. Non-Recourse Land Financings not to exceed $300,000,000 $   E. Capitalization:    $   F. Debt to Capitalization Ratio ((Line I.A. – (Line I.B. + Line I.C + Line  I.D)) ÷ Line I.E):  %  III. Section 6.02(b) – Tangible Net Worth.  A. Tangible Net Worth at Statement Date:  1. Shareholders’ Equity or Net Worth of Borrower: $   2. Intangibles:  $   3. Tangible Net Worth (Line III.A.1 – Line III.A.2): $   B. 70% of Tangible Net Worth on March 31, 2022: $[___________]  C. 50% of cumulative Net Income of Borrower and its Subsidiaries  (without deduction for losses) earned for each completed fiscal  quarter subsequent to March 31, 2022 to the date of determination: $   D. 50% of the cash proceeds of Equity Interests of Borrower sold by  Borrower after the Closing Date  $   E. 50% of the aggregate increase in Tangible Net Worth after the  Closing Date by reason of the issuance of Equity Interests of  Borrower upon conversion of Indebtedness of Borrower into such  Equity Interests   $   F. Aggregate amount paid by Borrower for repurchase of its Equity  Interests at any time after the Closing Date (but only to the extent  such repurchases no not exceed the Maximum Deductible  Amount)   $   G. Minimum required Tangible Net Worth (Line III.B + Line III.C +  





 






4889-9733-0207 v.9    Exhibit C - 4  Form of Compliance Certificate    Line III.D + Line III.E – Line III.F ): $   





 






4889-9733-0207 v.9    Exhibit D-1 - 1  Form of Assignment and Assumption    EXHIBIT D-1  ASSIGNMENT AND ASSUMPTION  This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date  set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below  ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below ([the][each, an]  “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the  Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have  the meanings given to them in the Third Amended and Restated Credit Agreement identified below (as  amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and  incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein  in full.  For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the  Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes  from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and  Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as  contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its  capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other  documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage  interest[s] identified below of all the outstanding rights and obligations under the respective facilities  identified below (including the Letters of Credit included in such facilities5) and (ii) to the extent  permitted to be assigned under applicable Law, all claims, suits, causes of action and any other right of  [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as  Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit  Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions  governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort  claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights  and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and  assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being  referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without  recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption,  without representation or warranty by [the][any] Assignor.  1. Assignor[s]: ______________________________  ______________________________  [Assignor [is] [is not] a Defaulting Lender]    1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a  single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the  second bracketed language.  2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a  single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second  bracketed language.  3 Select as appropriate.  4 Include bracketed language if there are either multiple Assignors or multiple Assignees.  5 Include all applicable subfacilities.  





 






4889-9733-0207 v.9    Exhibit D-1 - 2  Form of Assignment and Assumption    2. Assignee[s]: ______________________________  ______________________________  [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]  3. Borrower(s): PulteGroup, Inc., a Michigan corporation  4. Administrative Agent: Bank of America, N.A., as Administrative Agent under the Credit  Agreement  5. Credit Agreement: Third Amended and Restated Credit Agreement, dated as of June 14,  2022, among PulteGroup, Inc., a Michigan corporation, the Lenders from time to time party  thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer  6. Assigned Interest[s]:        Assignor[s]6        Assignee[s]7  Aggregate  Amount of  Commitments for  all Lenders8  Amount of  Commitment  Assigned  Percentage  Assigned of  Commitment9      CUSIP   Number                              [7. Trade Date: __________________]10  Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT  AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE  REGISTER THEREFOR.]  The terms set forth in this Assignment and Assumption are hereby agreed to:  ASSIGNOR[S]11  [NAME OF ASSIGNOR]    By: _____________________________      6 List each Assignor, as appropriate.  7 List each Assignee and, if available, its market entity identifier, as appropriate.  8 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take  into account any payments or prepayments made between the Trade Date and the Effective Date.  9 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.  10 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be  determined as of the Trade Date.  11 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if  applicable).  





 






4889-9733-0207 v.9    Exhibit D-1 - 3  Form of Assignment and Assumption    [NAME OF ASSIGNOR]    By: _____________________________   Title:    ASSIGNEE[S]12  [NAME OF ASSIGNEE]    By: _____________________________   Title:    [NAME OF ASSIGNEE]    By: _____________________________   Title:    12 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if  applicable).  





 






4889-9733-0207 v.9    Exhibit D-1 - 4  Form of Assignment and Assumption    [Consented to and]13 Accepted:  BANK OF AMERICA, N.A., as   Administrative Agent    By: _________________________________    Title:  [Consented to:]14    By: _________________________________    Title:    13 To be added only if the consent of Administrative Agent is required by the terms of the Credit Agreement.  14 To be added only if the consent of Borrower and/or other parties (e.g. L/C Issuers) is required by the terms of the  Credit Agreement.  





 






4889-9733-0207 v.9    Exhibit D-1 - 5  Form of Assignment and Assumption    ANNEX 1 TO ASSIGNMENT AND ASSUMPTION  STANDARD TERMS AND CONDITIONS FOR   ASSIGNMENT AND ASSUMPTION  1. Representations and Warranties.  1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and  beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and  clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken  all action necessary, to execute and deliver this Assignment and Assumption and to consummate the  transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no  responsibility with respect to (i) any statements, warranties or representations made in or in connection  with the Credit Agreement or any other Credit Document, (ii) the execution, legality, validity,  enforceability, genuineness, sufficiency or value of the Credit Documents or any collateral thereunder,  (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any other Person obligated  in respect of any Credit Document or (iv) the performance or observance by Borrower, any of its  Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit  Document.  1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power  and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption  and to consummate the transactions contemplated hereby and to become a Lender under the Credit  Agreement, (ii) it meets all the requirements to be an assignee under Section 10.06(b)(iii) and (v) of the  Credit Agreement (subject to such consents, if any, as may be required under Section 10.06(b)(iii) of the  Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the  Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall  have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire  assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising  discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring  assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been  accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to  Section 6.01(a) and (b) thereof, as applicable, and such other documents and information as it deems  appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption  and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon  Administrative Agent or any other Lender and based on such documents and information as it has deemed  appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and  to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any  documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly  completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without  reliance upon Administrative Agent, [the][any] Assignor or any other Lender, and based on such  documents and information as it shall deem appropriate at the time, continue to make its own credit  decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance  with their terms all of the obligations which by the terms of the Credit Documents are required to be  performed by it as a Lender.   2. Payments. From and after the Effective Date, Administrative Agent shall make all  payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and  other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the  Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the  Effective Date. Notwithstanding the foregoing, Administrative Agent shall make all payments of interest,  





 






4889-9733-0207 v.9    Exhibit D-1 - 6  Form of Assignment and Assumption    fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant]  Assignee.  3. General Provisions. This Assignment and Assumption shall be binding upon, and  inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and  Assumption may be executed in any number of counterparts, which together shall constitute one  instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption  by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and  Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with,  the law of the State of ____________________ [confirm that choice of law provision parallels the Credit  Agreement].    





 






4889-9733-0207 v.9    Exhibit D-2 - 1  Form of Administrative Questionnaire    EXHIBIT D-2  FORM OF ADMINISTRATIVE QUESTIONNAIRE  [Attached.] 





 






   LSTA and LMA, Effective May 31, 2018                            LSTA/LMA Standard Administrative Details Form                    The Loan Market Association ("LMA") and Loan Syndications & Trading Association ("LSTA")  consent to the use and reproduction of this document for the preparation and documentation of  agreements relating to transactions or potential transactions in the loan markets.      © Loan Market Association, Loan Syndications & Trading Association.  All rights reserved.  LSTA/LMA Standard Administrative Details Form  





 






       BORROWER DETAILS  Borrower Name       ENTITY DETAILS  Name Lender’s name as it appears on tax/registration documentation. MEI Markit Entity ID  GIIN  FATCA Global Intermediary Identification  Number (Optional)  CRN  UK Company Registration  Number (Optional)  LEI Legal Entity ID (Optional)  Entity Type Type of lender. If lender/entity type does not appear in list, you may provide your own value.  Address (of Lending Office):   Registered address of lending office, including country of domicile.    Signature Block:  Signature Block as it would appear on settlement  documentation. E.g. (for separately managed account):  ABC Fund   by 123 Asset Management as Advisor  Fund Manager Name of fund/asset manager, as would be referenced in the sig. block. MEI Markit Entity ID  Lender Parent Name of legal parent if different from lender entity. (Optional)  MEI Markit Entity ID      NOTICE/SERVICING MESSAGE DELIVERY INSTRUCTIONS  Firm Name of Company Fax Fax Number Email Email Address Email Pfd.  Firm Name of Company Fax Fax Number Email Email Address Email Pfd.      STANDARD SETTLEMENT INSTRUCTIONS / WIRING INSTRUCTIONS  Currency Applicable Currency.  Account With Institution Name of Beneficiary’s Bank (usually custodian/trustee)  SWIFT BIC 8/11-Character BIC of Beneficiary’s Bank  ABA #  Routing # or UK Sort Code of Beneficiary’s  Bank (optional)  Beneficiary Customer Name of Ultimate Beneficiary (Lender)  Beneficiary Account # Account # of Ult. Beneficiary IBAN IBAN of Ultimate Beneficiary (opt)  Payment Reference  (Remittance Info)  Use Standard Wire Reference Format*:  [Borrower Name]  [Facility Name/Abbr.] [Facility/Deal CUSIP/ISIN]  [Payment Purpose(s)] [Transaction Reference ID]  Special Instructions     Template above can be used for wire instructions where receiving bank is custodian/trustee, and lender has dedicated account. Additional templates  provided at Appendix A.    SERVICE PROVIDERS & THIRD-PARTY DATA ACCESS    Doc.  Delivery  Recon &  Inventory  Role Custodian/Trustee Name  Name of Company MEI Markit Entity ID ☐ ☐  Role Relationship to lender. Name  Name of Company MEI Markit Entity ID ☐ ☐       





 






         OPERATIONS CONTACTS (INQUIRIES ONLY)  Name Name of group or individual.  Select group or  Individual  Firm Firm with which contact is affiliated.  Address: Registered address of contact’s office (if different than the lender’s office), including country of domicile.      Phone   Fax  Email   ☐ Settlements ☐ Servicing ☐ SSI Verification ☐ KYC Pfd. Contact Method Preferred contact method for inquiries.    Copy and paste section above to add any additional contacts. It is recommended that at least one of the contacts be a group.    OPERATIONS CLOSER CONTACTS   Name Name of group or individual.  Select group or  Individual  Firm Firm with which contact is affiliated.  Address: Registered address of contact’s office (if different than the lender’s office), including country of domicile.      Phone   Fax  Email   ☐ Settlements ☐ Servicing ☐ SSI Verification ☐ KYC Pfd. Contact Method Preferred contact method for inquiries.    Copy and paste section above to add any additional contacts. It is recommended that at least one of the contacts be a group.      CREDIT CONTACTS (LEGAL DOCUMENTATION, AMENDMENTS & WAIVERS)  Name Name of group or individual.  Select group or  Individual  Firm Firm with which contact is affiliated.  Address: Registered address of contact’s office (if different than the lender’s office), including country of domicile.      Phone   Fax  Email   ☐ Data Room Access  Pfd. Contact Method Preferred contact method for inquiries.    Copy and paste section above to add any additional contacts. It is recommended that at least one of the contacts be a group.  





 






       LETTER OF CREDIT CONTACTS  Name Name of group or individual.  Select group or  Individual  Firm Firm with which contact is affliated.  Address: Registered address of contact’s office (if different than the lender’s office), including country of domicile.      Phone  Phone Number (opt. for groups) Fax Fax Number Email Email Address   Pfd. Contact Method Preferred contact method for inquiries.    Copy and paste section above to add any additional contacts. It is recommended that at least one of the contacts be a group.    ADDITIONAL ENTITY DETAILS & KYC INFORMATION  Country of  Incorporation  Country of Incorporation of lender  Country of Tax  Residence  Country of Residence of lender for tax purposes  EIN US Employee ID Number UK Treaty Passport # UK Treaty Passport #  US Tax Form Type of tax form used/attached   UK Treaty Passport  Expiry Date  UK Treaty Passport Expiry Date  Entity  Referenced As  Primary Entity         CURRENCIES AND JURISDICTIONS FOR MULTICURRENCY TRANSACTIONS INFORMATION    PLEASE CHECK BOX OF THE CURRENCIES YOUR INSTITUTION CAN FUND UNDER THIS TRANSACTION:                                                                                                        PLEASE CHECK BOX IF YOUR INSTITUTION IS LICENSED TO FUND TO BORROWERS LOCATED IN THE FOLLOWING  COUNTRIES:                                                                                                        





 






       Appendix A: Additional Wire Instruction Templates and Bank of America USD / FX Wire Instructions:  Template below can be used for wire instructions where recipient is intermediary bank with nostro account for custodian and the Lender does not have  a dedicated account. Lender may copy and paste the template below as many times as necessary to capture various currency remittance instructions.  Currency Applicable Currency.  Correspondent Bank Name of Receiver’s Correspondent Bank (SWIFT 54a)  SWIFT BIC 8/11-Character SWIFT BIC of Correspondent Bank  Intermediary Bank Name of Intermediary Bank (SWIFT 56a)  SWIFT BIC  8/11-Character SWIFT BIC of Intermediary  Bank   ABA #  ABA/Routing # or UK Sort Code of  Intermediary Bank (optional)  Account With Institution Name of Beneficiary’s Bank – usually custodian (SWIFT 57a)   SWIFT BIC  8/11-Character SWIFT BIC of Beneficiary’s  Bank   IBAN  IBAN of  Beneficiary’s Bank at Intermediary  Beneficiary Customer Name of Ultimate Beneficiary (Lender) (SWIFT 59a)   Beneficiary Account # Account #/Code of Ult. Beneficiary  Payment Reference  (Remittance Info)  Use Standard Wire Reference Format*:  [Borrower Name]  [Facility Name/Abbr.] [Facility/Deal CUSIP/ISIN]  [Payment Purpose(s)] [Transaction Reference ID]  Special Instructions   Lender’s Payment Instructions:    Please input payment instructions for each respective currency referenced in CURRENCIES AND JURISDICTIONS  FOR MULTICURRENCY TRANSACTIONS INFORMATION section above.  If your respective institution is unable  to fund any of the currencies noted, please notify Administrative Agent immediately.  Bank of America’s Payment Instructions:  USD Payment Instructions:   Pay to:  Bank of America, N.A.    ABA # 026009593    New York, NY    Account #: 1366072250600    Attn: Wire Clearing Acct for Syn Loans - LIQ      Ref: [Borrower Name]          Foreign Currency Payment Instructions:   Foreign Currency  Payment Instruction         





 






               Appendix B: Lender’s Organizational Structure and Tax Status:  Please refer to the enclosed withholding tax instructions below and then complete this section accordingly.  Lender Taxpayer Identification Number (TIN):       Tax Withholding Form Delivered to Bank of America (circle applicable one):   W-9        W-8BEN        W-8BEN-E     W-8ECI        W-8EXP      W-8IMY        Tax Contact:               First:            MI:           Last:         Title:         Street Address:         Suite/ Mail Code:         City:             State:         Postal Code:           Country:         Telephone:            Facsimile:         E-Mail Address:         SyndTrak E-Mail Address:         NON–U.S. LENDER INSTITUTIONS   1. Corporations:     If your institution is organized outside of the United States, is classified as a Corporation or other non-flow through  entity for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives,  you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN  (Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (and a U.S. Tax  Compliance Certificate if applicable)) or Form W-8BEN-E, b.) Form W-8ECI (Certificate of Foreign Person’s Claim  that Income is Effectively Connected with the Conduct of a Trade or Business in the United States), or c.) Form W- 8EXP (Certificate of Foreign Government or Other Foreign Organization for United States Tax Withholding and  Reporting).     A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI.  It is also required  on Form W-8BEN or Form W-8BEN-E for certain institutions claiming the benefits of a tax treaty with the  U.S.  Please refer to the instructions when completing the form applicable to your institution.     2. Flow-Through Entities   If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a  Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form  W- 8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax  Withholding and Reporting) must be completed by the intermediary together with a withholding statement.  Flow-through  entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.   Please refer to the instructions when completing this form   





 






       U.S. LENDER INSTITUTIONS:   If your institution is incorporated or organized within the United States, you must complete and return Form W-9  (Request for Taxpayer Identification Number and Certification).     Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your  institution must be completed and returned on or prior to the date on which your institution becomes a lender  under this Credit Agreement.  Failure to provide the proper tax form when requested will subject your  institution to U.S. tax withholding.   *Additional guidance and instructions as to where to submit this documentation can be found at this link:  IRS Tax Form Tool  Kit.pdf       





 






4889-9733-0207 v.9    Exhibit E - 1  Form of Third Amended and Restated Guaranty    EXHIBIT E  FORM OF THIRD AMENDED AND RESTATED GUARANTY  Dated as of June 14, 2022    PULTEGROUP, INC., a Michigan corporation (“Borrower”), Bank of America, N.A., as Administrative  Agent and an L/C Issuer, and the Lenders each as defined therein, previously entered into that certain  Second Amended and Restated Credit Agreement dated as of June 22, 2018 (herein referred to, together  with all amendments, modifications, restatements, or supplements thereof, as the “Existing Credit  Agreement”). In connection with the Existing Credit Agreement, certain subsidiaries of Borrower entered  into that certain Second Amended and Restated Guaranty dated as of June 22, 2018 (herein referred to,  together with all amendments, modifications, restatements, or supplements thereof, as the “Existing  Guaranty”).  Borrower, Bank of America, N.A., in its capacity as Administrative Agent (“Administrative Agent”) and  an L/C Issuer, and certain Lenders are now entering into that certain Third Amended and Restated Credit  Agreement dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise  modified from time to time, the “Credit Agreement;” capitalized terms used herein and not otherwise  defined shall have the meanings set forth in the Credit Agreement).  As a condition to entering into and performing their respective obligations under the Credit Agreement,  Administrative Agent and Lenders have required that Guarantors (as defined below) execute and deliver  this Amended and Restated Guaranty, which shall amend and restate the Existing Guaranty in its entirety.   FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in consideration of  credit and/or financial accommodation heretofore or hereafter from time to time made or granted to  Borrower, by Administrative Agent and Lenders, the undersigned Subsidiaries of Borrower (each a  “Guarantor” and collectively, “Guarantors”) hereby jointly and severally furnish their guaranty of the  Guaranteed Obligations (as hereinafter defined) as follows:  1. Guaranty. Each Guarantor hereby absolutely and unconditionally guarantees, 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 existing and future indebtedness and liabilities of every kind, nature and  character, direct or indirect, absolute or contingent, liquidated or unliquidated, voluntary or involuntary  and whether for principal, interest, premiums, fees indemnities, damages, costs, expenses or otherwise, of  Borrower to Administrative Agent, L/C Issuers and/or Lenders (Administrative Agent, L/C Issuers and  Lenders are collectively referred to herein as “Secured Parties” and individually as a “Secured Party”),  arising under the Credit Agreement, the other Credit Documents, and all instruments, agreements and  other documents of every kind and nature now or hereafter executed in connection with the Credit  Agreement and the other Credit Documents (including all renewals, extensions, amendments,  refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by  Administrative Agent in connection with the collection or enforcement thereof), and whether recovery  upon such indebtedness and liabilities may be or hereafter become unenforceable or shall be an allowed  or disallowed claim under any proceeding or case commenced by or against any Guarantor or Borrower  under the Bankruptcy Code (Title 11, United States Code), any successor statute or any 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 and affecting the rights of creditors generally  





 






4889-9733-0207 v.9    Exhibit E - 2  Form of Third Amended and Restated Guaranty    (collectively, “Debtor Relief Laws”), and including interest that accrues after the commencement by or  against Borrower of any proceeding under any Debtor Relief Laws (collectively, the “Guaranteed  Obligations”). The Guaranteed Obligations shall, in addition to the foregoing, include all present and  future indebtedness, liabilities, and obligations arising from, by virtue of, or pursuant to any Hedging  Agreement that relates solely to the Obligations now or hereafter owed to Administrative Agent, any  Lender, any Affiliate of Administrative Agent or any Lender (or to any Person who was Administrative  Agent, a Lender or an Affiliate of Administrative Agent or any Lender at the time such Hedging  Agreement was entered into); provided that the Guaranteed Obligations shall exclude any Excluded Swap  Obligations (as hereinafter defined). Secured Parties’ books and records showing the amount of the  Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and, absent manifest  error, shall be binding upon each Guarantor and conclusive for the purpose of establishing the amount of  the Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or  enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed  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 Guaranteed Obligations which might  otherwise constitute a defense to the obligations of any Guarantor 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. Anything contained herein to the contrary notwithstanding, the  obligations of each Guarantor hereunder at any time shall be limited to an aggregate amount equal to the  largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent  transfer or conveyance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any  comparable provisions of any similar federal or state law.  2. No Setoff or Deductions; Taxes; Payments. Each Guarantor represents and warrants  that it is organized and resident in the United States. Each Guarantor shall make all payments hereunder  without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts,  duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature  now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or  other authority therein unless such Guarantor is compelled by law to make such deduction or withholding.  If any such obligation (other than one arising with respect to taxes based on or measured by the income or  profits of the respective Secured Parties) is imposed upon any Guarantor with respect to any amount  payable by it hereunder, such Guarantor will pay to Administrative Agent (for the benefit of Secured  Parties), on the date on which such amount is due and payable hereunder, such additional amount in U.S.  dollars as shall be necessary to enable Administrative Agent (on behalf of Secured Parties) to receive the  same net amount which Administrative Agent would have received on such due date had no such  obligation been imposed upon such Guarantor. Each Guarantor will deliver promptly to Administrative  Agent (for the benefit of Secured Parties) certificates or other valid vouchers for all taxes or other charges  deducted from or paid with respect to payments made by such Guarantor hereunder. The obligations of  each Guarantor under this paragraph shall survive the payment in full of the Guaranteed Obligations and  termination of this Guaranty.  3. Rights of Secured Parties. Each Guarantor consents and agrees that Administrative  Agent (for the benefit of Secured Parties) and/or Secured Parties (as applicable) 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 Guaranteed 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 Guaranteed Obligations; (c) apply such security and direct the order or  manner of sale thereof as Secured Parties, in their sole discretion may determine; and (d) release or  substitute one or more of any endorsers or other guarantors of any of the Guaranteed Obligations. Without  





 






4889-9733-0207 v.9    Exhibit E - 3  Form of Third Amended and Restated Guaranty    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.  4. Certain Waivers. Each Guarantor waives (a) any defense arising by reason of any  disability or other defense of Borrower or any other guarantor, or the cessation from any cause  whatsoever (including any act or omission of any Secured Party) of the liability of Borrower; (b) any  defense based on any claim that any Guarantor’s obligations exceed or are more burdensome than those  of Borrower; (c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder;  (d) any right to require Administrative Agent or any other Secured Party to proceed against Borrower,  proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in  Administrative Agent’s or any other Secured Party’s power whatsoever; (e) any benefit of and any right  to participate in any security now or hereafter held by Administrative Agent or any other Secured 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 Guaranteed  Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of  new or additional Guaranteed Obligations.  5. Obligations Independent. The obligations of each Guarantor hereunder are those of  primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations and the  obligations of any other guarantor, and a separate action may be brought against each Guarantor to  enforce this Guaranty whether or not Borrower or any other person or entity is joined as a party.  6. 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 Guaranteed Obligations (other than unasserted contingent claims for indemnification or  expense reimbursement for which no claim has been asserted or demanded) and any amounts payable  under this Guaranty have been indefeasibly paid and performed in full and any commitments of Secured  Parties or facilities provided by Secured Parties with respect to the Guaranteed Obligations are  terminated. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such  amounts shall be held in trust for the benefit of Secured Parties and shall forthwith be paid to  Administrative Agent (for the benefit of Secured Parties) to reduce the amount of the Guaranteed  Obligations, whether matured or unmatured.  7. Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of  all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until all  Guaranteed Obligations (other than unasserted contingent claims for indemnification or expense  reimbursement for which no claim has been asserted or demanded) and any other amounts payable under  this Guaranty are indefeasibly paid in full in cash and any commitments of Secured Parties or facilities  provided by Secured Parties with respect to the Guaranteed Obligations are terminated. 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 Borrower or any Guarantor is made, or any Secured Party exercises its  right of setoff, in respect of the Guaranteed 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 Secured 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  





 






4889-9733-0207 v.9    Exhibit E - 4  Form of Third Amended and Restated Guaranty    or not Administrative Agent (for the benefit of Secured Parties) is in possession of or has released this  Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of  Guarantors under this paragraph shall survive termination of this Guaranty.  8. Subordination. Each Guarantor hereby subordinates the payment of all obligations and  indebtedness of Borrower or any other Guarantor owing to such Guarantor, whether now existing or  hereafter arising, including but not limited to any obligation of Borrower to such Guarantor as subrogee  of any Secured Party or resulting from such Guarantor’s performance under this Guaranty, to the  indefeasible payment in full in cash of all Guaranteed Obligations. If Administrative Agent (for the  benefit of Secured Parties) so requests, any such obligation or indebtedness of Borrower or any other  Guarantor to any Guarantor shall be enforced and performance received by such Guarantor as trustee for  Administrative Agent (for the benefit of Secured Parties) and the proceeds thereof shall be paid over to  Administrative Agent (for the benefit of Secured Parties) on account of the Guaranteed Obligations, but  without reducing or affecting in any manner the liability of any Guarantor under this Guaranty.  9. Stay of Acceleration. In the event that acceleration of the time for payment of any of the  Guaranteed Obligations is stayed, in connection with any case commenced by or against any Guarantor or  Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by  Guarantors immediately upon demand by Administrative Agent.  10. Expenses. Guarantors shall pay on demand all documented out-of-pocket expenses  (including attorneys’ fees and expenses and the allocated cost and disbursements of internal legal counsel)  in any way relating to the enforcement or protection of Administrative Agent’s or any other Secured  Party’s rights under this Guaranty or in respect of the Guaranteed Obligations, including any incurred  during any “workout” or restructuring in respect of the Guaranteed Obligations and any incurred in the  preservation, protection or enforcement of any rights of Secured Parties in any proceeding any Debtor  Relief Laws. The obligations of Guarantors under this paragraph shall survive the payment in full of the  Guaranteed Obligations and termination of this Guaranty.  11. Miscellaneous. No provision of this Guaranty may be waived, amended, supplemented  or modified, except by a written instrument executed by Administrative Agent (for the benefit of Secured  Parties) and Guarantors. No failure by Administrative Agent to exercise, and no delay in exercising, any  right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise  of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of  any other right, power or remedy. The remedies herein provided are cumulative and not exclusive of any  remedies provided by law or in equity. The unenforceability or invalidity of any provision of this  Guaranty shall not affect the enforceability or validity of any other provision herein. Unless otherwise  agreed by Administrative Agent (for the benefit of Secured Parties) and Guarantors in writing, this  Guaranty is not intended to supersede or otherwise affect any other guaranty now or hereafter given by  Guarantors for the benefit of any Secured Party or any term or provision thereof.  12. Condition of Borrower. Each Guarantor acknowledges and agrees that it has the sole  responsibility for, and has adequate means of, obtaining from Borrower and any other guarantor such  information concerning the financial condition, business and operations of Borrower and any such other  guarantor as such Guarantor requires, and that Secured Parties have no duty, and Guarantors are not  relying on any Secured Party at any time, to disclose to Guarantors any information relating to the  business, operations or financial condition of Borrower or any other guarantor (the guarantor waiving any  duty on the part of any Secured Party to disclose such information and any defense relating to the failure  to provide the same).  





 






4889-9733-0207 v.9    Exhibit E - 5  Form of Third Amended and Restated Guaranty    13. Setoff. If and to the extent any payment is not made when due hereunder, each Secured  Party and each of their respective Affiliates is hereby authorized at any time and from time to time, to the  fullest extent permitted by applicable Law, to setoff 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 Secured Party or any such Affiliate to or for the credit or  the account of any Guarantor against any and all of the obligations of such Guarantor now or hereafter  existing under this Guaranty to such Secured Party or their respective Affiliates, irrespective of whether  or not such Secured Party or Affiliate shall have made any demand under this Guaranty and although such  obligations of such Guarantor may be contingent or unmatured or are owed to a branch, office or Affiliate  of such Secured Party different from the branch, office or Affiliate holding such deposit or obligated on  such indebtedness; in accordance with the terms of Section 10.08 of the Credit Agreement. The rights of  each Secured Party and their respective Affiliates under this Section are in addition to other rights and  remedies (including other rights of setoff) that such Secured Party or their respective Affiliates may have.  Each Secured Party agrees to notify Borrower and 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.   14. Representations and Warranties. Each Guarantor represents and warrants that (a) it is  duly organized and in good standing under the laws of the jurisdiction of its organization and has full  capacity and right to make and perform this Guaranty, and all necessary authority has been obtained;  (b) this Guaranty constitutes its legal, valid and binding obligation enforceable in accordance with its  terms; (c) the making and performance of this Guaranty does not and will not violate the provisions of  any applicable Law, regulation or order, and does not and will not result in the breach of, or constitute a  default or require any consent under, any material agreement, instrument, or document to which it is a  party or by which it or any of its property may be bound or affected; and (d) all consents, approvals,  licenses and authorizations of, and filings and registrations with, any governmental authority required  under applicable Law and regulations for the making and performance of this Guaranty have been  obtained or made and are in full force and effect. By execution hereof, each Guarantor covenants and  agrees that certain representations, warranties, terms, covenants, and conditions set forth in the Credit  Documents are applicable to such Guarantor and shall be imposed upon such Guarantor, and such  Guarantor reaffirms that each such representation and warranty is true and correct in all material respects  (without duplication of any materiality qualifiers set forth therein) and covenants and agrees to promptly  and properly perform, observe, and comply with each such term, covenant, or condition. Moreover, each  Guarantor acknowledges and agrees that this Guaranty is subject to the setoff provisions of the Credit  Documents in favor of the Lenders. In the event the Credit Agreement or any other Credit Document shall  cease to remain in effect for any reason whatsoever during any period when any part of the Guaranteed  Obligations remains unpaid, the terms, covenants, and agreements of the Credit Agreement or such other  Credit Document incorporated herein by reference shall nevertheless continue in full force and effect as  obligations of such Guarantor under this Guaranty.  15. Indemnification and Survival. Without limitation on any other obligations of  Guarantors or remedies of Administrative Agent (for the benefit of Secured Parties) under this Guaranty,  each Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold  harmless Secured Parties from and against, and shall pay on demand, any and all damages, losses,  liabilities and related documented expenses (including attorneys’ fees and expenses and the allocated cost  and disbursements of internal legal counsel) that may be suffered or incurred by Secured Parties in  connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and  binding obligations of Borrower enforceable against Borrower in accordance with their terms. The  obligations of each Guarantor under this paragraph shall survive the payment in full of the Guaranteed  Obligations and termination of this Guaranty.  





 






4889-9733-0207 v.9    Exhibit E - 6  Form of Third Amended and Restated Guaranty    16. New Guarantors. Additional Persons (each such Person being referred to herein as a  “New Guarantor”) may, from time to time, become party hereto (and thereby become a Guarantor)  pursuant to the terms and conditions set forth in Section 6.12 of the Credit Agreement by executing a  Supplemental Guaranty in the form of Exhibit A attached hereto. Each such New Guarantor hereby  acknowledges, agrees and confirms that, by its execution of such Supplemental Guaranty, such New  Guarantor will be deemed to be a Credit Party under the Credit Agreement and a Guarantor for all purposes  of the Credit Agreement and shall have all of the obligations of Guarantors hereunder as if it had executed  this Guaranty as of the Closing Date.     17. Governing Law; Assignment; Jurisdiction; Notices. This Guaranty shall be governed  by, and construed in accordance with, the internal laws of the State of New York. This Guaranty shall  (a) bind each Guarantor and its successors and assigns, provided that no Guarantor may assign its rights  or obligations under this Guaranty without the prior written consent of Administrative Agent (and any  attempted assignment without such consent shall be void), and (b) inure to the benefit of Secured Parties  and their successors and assigns and any Secured Party may, without notice to any Guarantor and without  affecting any Guarantor’s obligations hereunder, assign, sell or grant participations in the Guaranteed  Obligations and this Guaranty, in whole or in part. Each Guarantor hereby irrevocably (i) submits to the  exclusive jurisdiction of any United States Federal or State court sitting in New York, New York in any  action or proceeding arising out of or relating to this Guaranty, and (ii) waives to the fullest extent  permitted by law any defense asserting an inconvenient forum in connection therewith. Service of process  by any Secured Party in connection with such action or proceeding shall be binding on each Guarantor if  sent to such Guarantor by registered or certified mail at its address specified below or such other address  as from time to time notified by such Guarantor. Each Guarantor agrees that any Secured Party may  disclose to any assignee of or participant in, or any prospective assignee of or participant in, any of its  rights or obligations of all or part of the Guaranteed Obligations any and all information in such Secured  Party’s possession concerning any Guarantor, this Guaranty and any security for this Guaranty. All  notices and other communications to any Guarantor under this Guaranty shall be in writing and shall be  delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier  to such Guarantor at its address set forth below or at such other address in the United States as may be  specified by such Guarantor in a written notice delivered to Administrative Agent at such office as  Administrative Agent may designate for such purpose from time to time in a written notice to Guarantors.  18. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT  ALLOWED BY APPLICABLE LAW, EACH GUARANTOR AND EACH SECURED PARTY EACH  IRREVOCABLY WAIVES TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR  PROCEEDING ON, ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE  GUARANTEED OBLIGATIONS. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT  BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,  CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.  19. Keepwell. At the time the Guaranteed Obligations of any Specified Credit Party become  effective with respect to any Swap Obligation, each Credit Party that is a Qualified ECP Guarantor hereby  jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or  other support to each Specified Credit Party with respect to such Swap Obligation as may be needed by  such Specified Credit Party from time to time to honor all of its obligations under this Guaranty and the  other Credit 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 Section voidable under applicable Law relating to fraudulent  conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of  





 






4889-9733-0207 v.9    Exhibit E - 7  Form of Third Amended and Restated Guaranty    each Qualified ECP Guarantor under this Section shall remain in full force and effect until the  Obligations have been indefeasibly paid and performed in full. Each Qualified ECP Guarantor intends  this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of,  and a “keepwell, support, or other agreement” for the benefit of, each Specified Credit Party for all  purposes of the Commodity Exchange Act.    20. Definitions. As used herein, the following terms shall have the respective meanings as  follows:  (a)  “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.    (b) “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 security interest to secure, such Swap Obligation (or any guaranty  thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order  of the Commodity Futures Trading Commission (or the application or official interpretation of  any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract  participant” as defined in the Commodity Exchange Act (determined after giving effect to Section  19 hereof 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 Credit Parties) at the  time the guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes  effective with respect to such Swap Obligation. If a Swap Obligation arises under a master  agreement governing more than one swap, such exclusion shall apply only to the portion of such  Swap Obligation that is attributable to swaps for which such guaranty or security interest is or  becomes excluded in accordance with the first sentence of this definition.     (c) “Qualified ECP Guarantor” means, at any time, each Credit 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 §1a(18)(A)(v)(II) of the Commodity Exchange Act.    (d) “Specified Credit Party” means any Credit Party that is not an “eligible contract  participant” under the Commodity Exchange Act (determined prior to giving effect to Section 19  hereof).    (e) “Swap Obligation” means with respect to any Guarantor any obligation to pay or  perform under any agreement, contract or transaction that constitutes a “swap” within the  meaning of Section 1a(47) of the Commodity Exchange Act.    21. Amendment and Restatement. This Guaranty is given in amendment, restatement,  modification, and increase, but not in extinguishment or novation, of the Existing Guaranty. Each  Guarantor party to the Existing Guaranty ratifies and confirms its obligations pursuant to the Existing  Guaranty, as amended and restated by this Guaranty.       





 






4889-9733-0207 v.9    Exhibit E - 8  Form of Third Amended and Restated Guaranty    Executed as of the date first written above.  Guarantors:     Centex International II, LLC  Centex LLC  Centex Real Estate Company, LLC  Centex Real Estate Construction Company, LLC  Del Webb Communities, Inc.  Del Webb Corporation  Del Webb's Coventry Homes, Inc.  DiVosta Homes Holdings, LLC  Nomas LLC  PH 19 Corporation  PH1 Corporation  PH Oakwood Trails, LLC  PN II, Inc.  Preserve II, Inc.  Pulte Arizona Services, Inc.  Pulte Development Corporation  Pulte Development New Mexico, Inc.  Pulte Diversified Company, LLC  Pulte Home Company, LLC  Pulte Homes of Indiana, LLC  Pulte Homes of Michigan LLC  Pulte Homes of Minnesota LLC  Pulte Homes of New England LLC  Pulte Homes of New Mexico, Inc.  Pulte Homes of Ohio LLC  Pulte Homes of Washington, Inc.  Pulte Homes Tennessee, Inc.   Pulte Realty Holding Company, LLC  Pulte Texas Holdings LLC  RN Acquisition 2 Corp.                       By:  D. Bryce Langen  Title: Vice President and Treasurer     [continued on following page] 





 






4889-9733-0207 v.9    Exhibit E - 9  Form of Third Amended and Restated Guaranty      Centex Development Company, L.P.  By: Centex Homes  Its: General Partner  By: Centex Real Estate Company, LLC  Its: Managing Partner            By:  D. Bryce Langen  Title: Vice President and Treasurer    Centex Homes  By: Centex Real Estate Company, LLC  Its: Managing Partner            By:  D. Bryce Langen  Title: Vice President and Treasurer    Pulte Realty Limited Partnership  By: PH 55 LLC  Its: General Partner  By: Pulte Realty Holding Company, LLC  Its: Sole Member            By:  D. Bryce Langen  Title: Vice President and Treasurer    DiVosta Homes, L.P.  By: DiVosta Homes Holdings, LLC  Its: General Partner            By:  D. Bryce Langen  Title: Vice President and Treasurer    Pulte Homes of NJ, Limited Partnership  By: Pulte Home Corporation of the Delaware  Valley  Its: General Partner            By:  D. Bryce Langen  Title: Vice President and Treasurer      Pulte Homes of PA, Limited Partnership  By: PH 50 LLC  Its: General Partner            By:  D. Bryce Langen  Title: Vice President and Treasurer  Pulte Homes of Texas, L.P.  By: Pulte Nevada I LLC  Its: General Partner            By:  D. Bryce Langen  Title: Vice President and Treasurer    Pulte/BP Murrieta Hills, LLC  By: Pulte Home Company, LLC  Its: Manager            By:  D. Bryce Langen  Title: Vice President and Treasurer    Pulte Homes Tennessee Limited Partnership  By: Pulte Homes Tennessee, Inc.  Its: General Partner            By:  D. Bryce Langen  Title: Vice President and Treasurer    





 






4889-9733-0207 v.9    Exhibit E - 10  Form of Third Amended and Restated Guaranty    EXHIBIT A  FORM OF SUPPLEMENTAL GUARANTY  [Date]  Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:   Reference is hereby made to (a) that certain Third Amended and Restated Credit Agreement  dated as of June 14, 2022, among PULTEGROUP, INC., a Michigan corporation, BANK OF AMERICA,  N.A., as Administrative Agent and an L/C Issuer, Lenders party thereto (as the same may be amended,  restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) and (b) that  certain Third Amended and Restated Guaranty, dated as of even date with the Credit Agreement,  executed and delivered by each Guarantor party thereto in favor of Secured Parties (as the same may be  amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in the Guaranty).      In accordance with Section 6.12 of the Credit Agreement and Section 16 of the Guaranty, the  undersigned, [GUARANTOR], a [corporation/limited partnership/limited liability company] organized  under the laws of [_______], hereby acknowledges, agrees and confirms that, by its execution hereof, the  undersigned will be deemed to be a Credit Party under the Credit Agreement and a Guarantor for all  purposes of the Credit Agreement and shall have all of the obligations of Guarantors under the Guaranty as if  it had executed the Guaranty as of the Closing Date (as such term is defined in the Credit Agreement).  Further, the undersigned hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms,  provisions and conditions contained in the Guaranty and in the Credit Agreement, including (a) all of the  representations and warranties of the Credit Parties set forth in the Credit Agreement, (b) all of the affirmative  and negative covenants of the Credit Parties set forth in the Credit Agreement and (c) all of the guaranty  obligations set forth in the Guaranty. The obligations of the undersigned under the Guaranty and under the  Credit Agreement will be joint and several with each other Person qualifying as a Guarantor under the  Guaranty.      This Supplemental Guaranty shall be governed by, and construed in accordance with, the internal  laws of the State of New York.     





 






4889-9733-0207 v.9    Exhibit E - 11  Form of Third Amended and Restated Guaranty      In witness whereof, this Supplemental Guaranty has been duly executed by the undersigned as of  the date first written above.         [NAME OF NEW GUARANTOR]      By:   Name:   Title:     





 






4889-9733-0207 v.9    Exhibit F-1  U.S. Tax Compliance Certificate    EXHIBIT F-1  FORM OF  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Third Amended and Restated Credit Agreement dated as  of June 14, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit  Agreement”), among PulteGroup, Inc., a Michigan corporation (“Borrower”), Bank of America, N.A., as  Administrative Agent for the Lenders, and each Lender from time to time party thereto.  Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s)  evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the  meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of Borrower within  the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related  to Borrower as described in Section 881(c)(3)(C) of the Code.  The undersigned has furnished Administrative Agent and Borrower with a certificate of  its non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable). By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform Borrower and Administrative Agent, and (2) the undersigned shall  have at all times furnished Borrower and Administrative Agent with a properly completed and currently  effective certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two calendar years preceding such payments.   Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]    By:    Name:   Title:   Date: ________ __, 20[ ]  





 






4889-9733-0207 v.9    Exhibit F-2  U.S. Tax Compliance Certificate    EXHIBIT F-2  FORM OF  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Third Amended and Restated Credit Agreement dated as  of June 14, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit  Agreement”), among PulteGroup, Inc., a Michigan corporation (“Borrower”), Bank of America, N.A., as  Administrative Agent for the Lenders, and each Lender from time to time party thereto.  Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it  is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,  (iii) it is not a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the  Code, and (iv) it is not a controlled foreign corporation related to Borrower as described in  Section 881(c)(3)(C) of the Code.  The undersigned has furnished its participating Lender with a certificate of its  non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable). By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all  times furnished such Lender with a properly completed and currently effective certificate in either the  calendar year in which each payment is to be made to the undersigned, or in either of the two calendar  years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]    By:    Name:  Title:  Date: ________ __, 20[ ]  





 






4889-9733-0207 v.9    Exhibit F-3  U.S. Tax Compliance Certificate    EXHIBIT F-3  FORM OF  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Third Amended and Restated Credit Agreement dated as  of June 14, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit  Agreement”), among PulteGroup, Inc., a Michigan corporation (“Borrower”), Bank of America, N.A., as  Administrative Agent for the Lenders, and each Lender from time to time party thereto.  Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing  this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such  participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect  partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary  course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its  direct or indirect partners/members is a ten percent shareholder of Borrower within the meaning of  Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled  foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code.  The undersigned has furnished its participating Lender with IRS Form W-8IMY  accompanied by one of the following forms from each of its partners/members that is claiming the  portfolio interest exemption: (i) an IRS Form W-8BEN-E (or W-8BEN, as applicable) or (ii) an IRS Form  W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN, as applicable) from each of such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times  furnished such Lender with a properly completed and currently effective certificate in either the calendar  year in which each payment is to be made to the undersigned, or in either of the two calendar years  preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]    By:    Name:   Title:   Date: ________ __, 20[ ]  





 






4889-9733-0207 v.9    Exhibit F - 4  U.S. Tax Compliance Certificate    EXHIBIT F-4  FORM OF  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Third Amended and Restated Credit Agreement dated as  of June 14, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit  Agreement”), among PulteGroup, Inc., a Michigan corporation (“Borrower”), Bank of America, N.A., as  Administrative Agent for the Lenders, and each Lender from time to time party thereto.  Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such  Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are  the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with  respect to the extension of credit pursuant to this Agreement or any other Credit Document, neither the  undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a  loan agreement entered into in the ordinary course of its trade or business within the meaning of  Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent  shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct  or indirect partners/members is a controlled foreign corporation related to Borrower as described in  Section 881(c)(3)(C) of the Code.  The undersigned has furnished Administrative Agent and Borrower with IRS Form W- 8IMY accompanied by one of the following forms from each of its partners/members that is claiming the  portfolio interest exemption: (i) an IRS Form W-8BEN-E (or W-8BEN, as applicable)or (ii) an IRS Form  W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN, as applicable) from each of such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform Borrower and Administrative Agent, and (2) the undersigned shall  have at all times furnished Borrower and Administrative Agent with a properly completed and currently  effective certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]    By:    Name:  Title:  Date: ________ __, 20[ ]