a8-kexhibit10






Execution Version    Published CUSIP Number: _________  Revolving Credit CUSIP Number:_________  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18      FOURTH AMENDED AND RESTATED  CREDIT AGREEMENT      Dated as of June 14, 2022      among      HNI CORPORATION,  as Borrower,    CERTAIN DOMESTIC SUBSIDIARIES OF THE BORROWER FROM TIME TO TIME PARTY  HERETO,   as Guarantors    THE LENDERS PARTIES HERETO    and    WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent      BANK OF AMERICA, N.A., as Syndication Agent    U.S. BANK NATIONAL ASSOCIATION and TRUIST BANK  as Co-Documentation Agents      WELLS FARGO SECURITIES, LLC  and  BOFA SECURITIES, INC.,  as Joint Lead Arrangers and Joint Lead Bookrunners      





 






  i  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  TABLE OF CONTENTS  SECTION 1 DEFINITIONS ............................................................................................................1  1.1 Definitions................................................................................................................1  1.2 Computation of Time Periods, Etc. ........................................................................33  1.3 Accounting Terms. .................................................................................................33  1.4 Exchange Rates; Currency Equivalents. ................................................................34  1.5 Redenomination of Certain Foreign Currencies and Computation of Dollar  Amounts. ................................................................................................................34  1.6 Execution of Documents. .......................................................................................35  1.7 Rates. ......................................................................................................................35  1.8 Divisions. ...............................................................................................................35  SECTION 2 CREDIT FACILITY .................................................................................................36  2.1 Revolving Loans. ...................................................................................................36  2.2 Competitive Loan Subfacility. ...............................................................................37  2.3 Swingline Loan Subfacility. ...................................................................................39  2.4 Letter of Credit Subfacility. ...................................................................................42  2.5 Additional Loans. ...................................................................................................45  2.6 Default Rate. ..........................................................................................................46  2.7 Extension and Conversion. ....................................................................................47  2.8 Prepayments. ..........................................................................................................47  2.9 Termination and Reduction of Commitments........................................................48  2.10 Fees. .......................................................................................................................48  2.11 Computation of Interest and Fees. .........................................................................49  2.12 Pro Rata Treatment and Payments. ........................................................................50  2.13 Non-Receipt of Funds by the Administrative Agent. ............................................52  2.14 Inability to Determine Interest Rate. ......................................................................53  2.15 Illegality. ................................................................................................................56  2.16 Change in Law. ......................................................................................................57  2.17 Indemnity. ..............................................................................................................59  2.18 Taxes. .....................................................................................................................59  2.19 Indemnification; Nature of Issuing Lender’s Duties. ............................................62  2.20 Mitigation Obligations; Replacement of Lenders. .................................................63  2.21 [Reserved]. .............................................................................................................64  2.22 Cash Collateral. ......................................................................................................64  2.23 Defaulting Lenders. ................................................................................................65  2.24 Amend and Extend Transactions. ..........................................................................68  SECTION 3 REPRESENTATIONS AND WARRANTIES .........................................................69  3.1 Financial Statements. .............................................................................................69  3.2 Organization; Existence; Patriot Act Information. ................................................69  3.3 Authorization; Power; Enforceable Obligations. ...................................................70  3.4 Consent; Government Authorizations....................................................................70  3.5 No Material Litigation. ..........................................................................................70  3.6 Taxes. .....................................................................................................................70  3.7 ERISA. ...................................................................................................................71  3.8 Governmental Regulations, Anti-Terrorism Laws; Etc. ........................................72  





 






  ii  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  3.9 Subsidiaries. ...........................................................................................................73  3.10 Use of Proceeds. .....................................................................................................73  3.11 Contractual Obligations; Compliance with Laws; No Conflicts. ..........................74  3.12 Accuracy and Completeness of Information. .........................................................74  3.13 Environmental Matters...........................................................................................74  3.14 No Burdensome Restrictions. ................................................................................75  3.15 Title to Property. ....................................................................................................75  3.16 Insurance. ...............................................................................................................75  3.17 Licenses and Permits. .............................................................................................76  3.18 Labor Matters. ........................................................................................................76  3.19 No Material Adverse Effect. ..................................................................................76  3.20 Solvency. ................................................................................................................76  3.21 Authorized Officer. ................................................................................................76  SECTION 4 CONDITIONS ..........................................................................................................76  4.1 Conditions to Closing. ...........................................................................................76  4.2 Conditions to All Extensions of Credit. .................................................................79  SECTION 5 AFFIRMATIVE COVENANTS...............................................................................79  5.1 Financial Statements. .............................................................................................80  5.2 Certificates; Other Information. .............................................................................80  5.3 Notices. ..................................................................................................................82  5.4 Maintenance of Existence; Compliance with Laws; Contractual Obligations. .....82  5.5 Maintenance of Property; Insurance. .....................................................................83  5.6 Inspection of Property; Books and Records; Discussions. ....................................83  5.7 Use of Proceeds. .....................................................................................................84  5.8 Additional Guarantors; Release of Guarantors. .....................................................84  5.9 Financial Covenants. ..............................................................................................84  5.10 Payment of Obligations. .........................................................................................85  5.11 Environmental Laws. .............................................................................................85  5.12 Beneficial Ownership; Further Assurances. ..........................................................86  SECTION 6 NEGATIVE COVENANTS .....................................................................................86  6.1 Indebtedness. ..........................................................................................................86  6.2 Liens. ......................................................................................................................87  6.3 Nature of Business. ................................................................................................87  6.4 Mergers, Sale of Assets and Indebtedness of Subsidiaries ....................................87  6.5 Advances, Investments and Loans. ........................................................................88  6.6 Transactions with Affiliates. ..................................................................................89  6.7 Fiscal Year; Organizational Documents. ...............................................................89  6.8 Limitation on Restricted Actions. ..........................................................................90  6.9 Reserved. ................................................................................................................90  6.10 Reserved. ................................................................................................................90  6.11 No Further Negative Pledges. ................................................................................90  SECTION 7 EVENTS OF DEFAULT ..........................................................................................91  7.1 Events of Default. ..................................................................................................91  7.2 Acceleration; Remedies. ........................................................................................93  7.3 Rescission of Acceleration. ....................................................................................93  





 






  iii  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  SECTION 8 AGENCY PROVISIONS .........................................................................................94  8.1 Appointment and Authority. ..................................................................................94  8.2 Nature of Duties. ....................................................................................................94  8.3 Exculpatory Provisions. .........................................................................................95  8.4 Reliance by Administrative Agent. ........................................................................95  8.5 Notice of Default. ...................................................................................................96  8.6 Non-Reliance on Administrative Agent and Other Lenders. .................................96  8.7 Indemnification. .....................................................................................................96  8.8 Administrative Agent in Its Individual Capacity. ..................................................97  8.9 Successor Administrative Agent. ...........................................................................97  8.10 Guaranty Matters. ..................................................................................................98  8.11 Bank Products. .......................................................................................................98  8.12 Erroneous Payments. ..............................................................................................98  SECTION 9 GUARANTY ..........................................................................................................100  9.1 The Guaranty. ......................................................................................................100  9.2 Bankruptcy. ..........................................................................................................101  9.3 Nature of Liability. ...............................................................................................101  9.4 Independent Obligation. .......................................................................................101  9.5 Authorization. ......................................................................................................102  9.6 Reliance................................................................................................................102  9.7 Waiver. .................................................................................................................102  9.8 Limitation on Enforcement. .................................................................................103  9.9 Confirmation of Payment. ....................................................................................103  9.10 Keepwell. .............................................................................................................103  SECTION 10 MISCELLANEOUS .............................................................................................104  10.1 Amendments and Waivers. ..................................................................................104  10.2 Notices. ................................................................................................................106  10.3 No Waiver; Cumulative Remedies. .....................................................................108  10.4 Survival of Representations and Warranties. .......................................................108  10.5 Payment of Expenses and Taxes. .........................................................................108  10.6 Successors and Assigns; Participations; Purchasing Lenders. .............................110  10.7 Adjustments; Set-off. ...........................................................................................114  10.8 Table of Contents and Section Headings. ............................................................115  10.9 Counterparts; Effectiveness: Electronic Execution. ............................................115  10.10 Judgment Currency. .............................................................................................115  10.11 Severability. .........................................................................................................116  10.12 Integration. ...........................................................................................................116  10.13 GOVERNING LAW. ...........................................................................................116  10.14 Consent to Jurisdiction and Service of Process. ..................................................116  10.15 Confidentiality; Non-Public Information. ............................................................117  10.16 Acknowledgments................................................................................................118  10.17 Waivers of Jury Trial. ..........................................................................................118  10.18 Patriot Act Notice. ...............................................................................................118  10.19 Resolution of Drafting Ambiguities.....................................................................118  10.20 Press Releases and Related Matters. ....................................................................119  10.21 Appointment of Borrower. ...................................................................................119  





 






  iv  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  10.22 No Advisory or Fiduciary Responsibility. ...........................................................119  10.23 Responsible Officers and Authorized Officers. ...................................................120  10.24 Amendment and Restatement; No Novation. ......................................................120  10.25 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. ...120  10.26 Certain ERISA Matters. .......................................................................................121  10.27 ESG Amendment. ................................................................................................123  10.28 QFC Stay Provisions. ...........................................................................................123    





 






  v  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  SCHEDULES     Schedule 3.2   Patriot Act Information   Schedule 3.9   Subsidiaries  Schedule 3.16   Insurance  Schedule 3.21   Authorized Officers  Schedule 6.1   Indebtedness  Schedule 6.2   Liens    EXHIBITS    Exhibit 1.1A   Existing Letters of Credit  Exhibit 1.1B   Form of Bank Product Provider Notice   Exhibit 2.1(a)   Lenders and Commitments  Exhibit 2.1(b)(i)  Form of Notice of Borrowing  Exhibit 2.1(e)   Form of Revolving Note  Exhibit 2.2(b)-1   Form of Competitive Bid Request  Exhibit 2.2(b)-2   Form of Notice of Receipt of Competitive Bid Request  Exhibit 2.2(c)   Form of Competitive Bid  Exhibit 2.2(e)   Form of Competitive Bid Accept/Reject Letter  Exhibit 2.3(e)   Form of Swingline Note  Exhibit 2.7   Form of Notice of Extension/Conversion  Exhibit 2.18 (1-4)  Form of U.S. Tax Compliance Certificate  Exhibit 5.2(b)   Form of Officer’s Compliance Certificate  Exhibit 5.8   Form of Joinder Agreement  Exhibit 10.6   Form of Assignment and Assumption      





 






  1  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  FOURTH AMENDED AND RESTATED  CREDIT AGREEMENT     THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June  14, 2022 (as amended, modified, extended, restated, replaced or supplemented from time to time, the  “Agreement”), is by and among HNI Corporation, an Iowa corporation (the “Borrower”), those Domestic  Subsidiaries of the Borrower identified as “Guarantors” on the signature pages hereto and such other  Domestic Subsidiaries of the Borrower as may from time to time become a party hereto (the  “Guarantors”), the lenders named herein and such other lenders as may become a party hereto  (collectively, the “Lenders” and individually, a “Lender”) and Wells Fargo Bank, National Association,  as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”).    W I T N E S S E T H    WHEREAS, the Borrower, the Guarantors, the Administrative Agent, and the lenders party  thereto are party to that certain Third Amended and Restated Credit Agreement dated as of April 20, 2018  (as amended and in effect immediately prior to the Closing Date referred to below, the “Existing Credit  Agreement”); and  WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent agree to  amend and restate the Existing Credit Agreement to, among other things, extend the Maturity Date (as  defined below), and the Lenders and the Administrative Agent are willing to so amend and restate the  Existing Credit Agreement, on the terms and conditions hereinafter set forth.   NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable  consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as  follows:      SECTION 1  DEFINITIONS    1.1 Definitions.     As used in this Agreement, the following terms shall have the meanings specified below unless  the context otherwise requires:    “Additional Commitment Lender” has the meaning set forth in Section 2.24.     “Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a)  Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term  SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to  be the Floor.    “Administrative Agent” has the meaning set forth in the first paragraph hereof, together with any  successors or assigns.    “Administrative Agent Fee Letter” means that certain letter agreement, dated as of May 19, 2022,  among the Administrative Agent, WFS and the Borrower, as amended, modified, supplemented or  replaced from time to time.      





 






  2  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18   “Administrative Questionnaire” means an administrative questionnaire in a form supplied by the  Administrative Agent.    “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.     “Affiliate” means as to any Person, any other Person which, directly or indirectly, is in control of,  is controlled by, or is under common control with, such Person.  For purposes of this definition, a Person  shall be deemed to be “controlled by” a Person if such Person possesses, directly or indirectly, power  either (a) to vote 10% or more of the securities having ordinary voting power for the election of directors  of such Person or (b) to direct or cause the direction of the management and policies of such Person  whether by contract or otherwise.     “Aggregate Revolving Committed Amount” means the aggregate amount of Commitments in  effect from time to time, being as of the Closing Date FOUR HUNDRED MILLION DOLLARS  ($400,000,000) (as such amount may be increased as provided in Section 2.5 or reduced as provided in  Section 2.9 from time to time).     “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime  Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 0.50% and (c) the sum of  (i) Adjusted Term SOFR for an Interest Period of one (1) month commencing on such day (the “One- Month Term SOFR Rate”) plus (ii) 1.00%, in each instance as of such date of determination.  For  purposes hereof: “Prime Rate” means, at any time, the rate of interest per annum publicly announced or  otherwise identified from time to time by Wells Fargo at its principal office as its prime rate.  Each  change in the Prime Rate shall be effective as of the opening of business on the day such change in the  Prime Rate occurs.  The parties hereto acknowledge that the rate announced publicly by Wells Fargo as  its Prime Rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its  customers or other banks; and “Federal Funds Rate” means, for any day, the weighted average of the rates  on overnight federal funds transactions with members of the Federal Reserve System arranged by federal  funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New  York, or, if such rate is not so published on the next succeeding Business Day, the average of the  quotations for the day of such transactions received by the Administrative Agent from three federal funds  brokers of recognized standing selected by it.  If for any reason the Administrative Agent shall have  reasonably determined (which determination shall be conclusive in the absence of manifest error) that it is  unable after due inquiry to ascertain the Federal Funds Rate, for any reason, including the inability or  failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms above, the  Alternate Base Rate shall be determined without regard to clause (b) of this definition until the  circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to  a change in the Federal Funds Rate, the Prime Rate or One-Month Term SOFR Rate will become  effective on the effective date of such change in the Federal Funds Rate, the Prime Rate or One-Month  Term SOFR Rate, respectively.  Notwithstanding the foregoing, if the Alternate Base Rate shall be less  than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.     “Alternate Base Rate Loans” means Loans that bear interest at an interest rate based on the  Alternate Base Rate.    “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to  the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption,  including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the rules and  regulations thereunder and the U.K. Bribery Act 2010 and the rules and regulations thereunder.  





 






  3  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  “Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory  government orders, decrees, ordinances or rules applicable to a Credit Party, its Subsidiaries or Affiliates  related to terrorism financing or money laundering, including any applicable provision of the Patriot Act  and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31  U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).    “Applicable Percentage” means, for any day, the rate per annum set forth below opposite the  applicable level then in effect, it being understood that the Applicable Percentage for (a) Alternate Base  Rate Loans shall be the percentage set forth under the column “Alternate Base Rate Margin for Revolving  Loans,” (b) SOFR Loans shall be the percentage set forth under the column “Term SOFR and RFR  Margin for Revolving Loans and Letter of Credit Fee,” (c) Swingline Loans that are Daily Simple RFR  Loans shall be the percentage set forth under the column “Term SOFR and RFR Margin for Revolving  Loans and Letter of Credit Fee,” (d) the Letter of Credit Fee shall be the percentage set forth under the  column “Term SOFR and RFR Margin for Revolving Loans and Letter of Credit Fee,” and (e) the  Commitment Fee shall be the percentage set forth under the column “Commitment Fee”:    Applicable Percentage      Level      Leverage Ratio    Alternate Base Rate  Margin for   Revolving Loans  Term SOFR and RFR  Margin for   Revolving Loans   and Letter of Credit  Fee      Commitment  Fee  I > 3.00 to 1.0     0.750% 1.750% 0.250%  II < 3.00 to 1.0 but   > 2.50 to 1.0  0.500% 1.500% 0.200%  III < 2.50 to 1.0 but   > 2.00 to 1.0  0.375% 1.375% 0.175%  IV < 2.00 to 1.0 but   > 1.50 to 1.0  0.250% 1.250% 0.150%  V < 1.50 to 1.0 but   > 1.00 to 1.0  0.125% 1.125% 0.125%  VI < 1.00 to 1.0 0.000% 1.000% 0.125%    The Applicable Percentage shall, in each case, be determined and adjusted quarterly on the date  five (5) Business Days after the date on which the Administrative Agent has received from the Borrower  the quarterly financial information (in the case of the first three fiscal quarters of the Borrower’s fiscal  year), the annual financial information (in the case of the fourth fiscal quarter of the Borrower’s fiscal  year) and the certifications required to be delivered to the Administrative Agent and the Lenders in  accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b) (each an “Interest Determination  Date”).  Such Applicable Percentage shall be effective from such Interest Determination Date until the  next such Interest Determination Date.  After the Closing Date, if the Credit Parties shall fail to provide  the financial information or certifications in accordance with the provisions of Sections 5.1(a), 5.1(b) and  5.2(b), the Applicable Percentage shall, on the date five (5) Business Days after the date by which the  Credit Parties were so required to provide such financial information or certifications to the  Administrative Agent and the Lenders, be based on Level I until such time as such information or  certifications or corrected information or corrected certificates are provided, whereupon the Level shall be  determined by the then current Leverage Ratio.  Notwithstanding the foregoing, the initial Applicable  Percentages shall be set with pricing set forth in Level V until the next succeeding Interest Determination  Date following the Closing Date, at which time the Applicable Percentage shall be subject to adjustment  





 






  4  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  in accordance with the foregoing terms of this paragraph.  In the event that any financial statement or  certification delivered pursuant to Sections 5.1 or 5.2 is shown to be inaccurate (regardless of whether this  Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy,  if corrected, would have led to the application of a higher Applicable Percentage for any period (an  “Applicable Period”) than the Applicable Percentage applied for such Applicable Period, the Borrower  shall immediately (a) deliver to the Administrative Agent a corrected compliance certificate for such  Applicable Period, (b) determine the Applicable Percentage for such Applicable Period based upon the  corrected compliance certificate, and (c) immediately pay to the Administrative Agent for the benefit of  the Lenders the accrued additional interest and other fees owing as a result of such increased Applicable  Percentage for such Applicable Period, which payment shall be promptly distributed by the  Administrative Agent to the Lenders entitled thereto.     “Applicable Time” means, with respect to any borrowings and payments in Foreign Currencies,  the local times in the place of settlement for such Foreign Currencies as may be determined by the  Administrative Agent to be necessary for timely settlement on the relevant date in accordance with  normal banking procedures in the place of payment.    “Approved Fund” means any Fund that is administered, managed or underwritten by (a) a Lender,  (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a  Lender.    “Assignment and Assumption” means an assignment and assumption entered into by a Lender  and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.6), and  accepted by the Administrative Agent, in substantially in the form of Exhibit 10.6.    “Authorized Officers” means the Responsible Officers set forth on Schedule 3.21, as the same  may be modified from time to time by the Borrower.    “Available Tenor” means, as of any date of determination and with respect to any then-current  Benchmark for any Currency, as applicable, (a) if such Benchmark is a term rate, any tenor for such  Benchmark (or component thereof) that is or may be used for determining the length of an interest period  pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to  such Benchmark (or component thereof) that is or may be used for determining any frequency of making  payments of interest calculated with reference to such Benchmark, in each case, as of such date and not  including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the  definition of “Interest Period” pursuant to Section 2.14(c)(iv).    “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.    “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, regulation, rule or requirement for such EEA Member Country from time to time  which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law,  regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks,  investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).    “Bank Product” means any of the following products, services or facilities extended to any Credit  Party or any Subsidiary by any Bank Product Provider: (a) Cash Management Services; (b) products  





 






  5  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  under any Hedging Agreement; and (c) commercial credit card, purchase card and merchant card  services; provided, however, that for any of the foregoing to be included as “Credit Party Obligations” for  purposes of a distribution under Section 2.12(b), the applicable Bank Product Provider must have  previously provided a Bank Product Provider Notice with respect to such Bank Product to the  Administrative Agent which shall provide the following information: (i) the existence of such Bank  Product and (ii) the maximum dollar amount (if reasonably capable of being determined) of obligations  arising thereunder (the “Bank Product Amount”).  The Bank Product Amount may be changed from time  to time upon written notice to the Administrative Agent by the Bank Product Provider.  Any Bank  Product established from and after the time that the Lenders have received written notice from the  Borrower or the Administrative Agent that an Event of Default exists, until such Event of Default has  been waived in accordance with Section 10.1, shall not be included as “Credit Party Obligations” for  purposes of a distribution under Section 2.12(b).  “Bank Product Amount” has the meaning set forth in the definition of Bank Product.  “Bank Product Debt” means the Indebtedness and other obligations of any Credit Party or  Subsidiary relating to Bank Products.  “Bank Product Provider” means any Person that provides Bank Products to a Credit Party or any  Subsidiary that is permitted by Section 6.1(e) to the extent that (a) such Person is a Lender, an Affiliate of  a Lender or any other Person that was a Lender (or an Affiliate of a Lender) at the time it entered into the  Bank Product but has ceased to be a Lender (or whose Affiliate has ceased to be a Lender) under the  Agreement or (b) such Person is a Lender or an Affiliate of a Lender on the Closing Date and the Bank  Product was entered into on or prior to the Closing Date (even if such Person ceases to be a Lender or  such Person’s Affiliate ceases to be a Lender).  “Bank Product Provider Notice” means a notice substantially in the form of Exhibit 1.1B.   “Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as  amended, modified, succeeded or replaced from time to time.    “Bankruptcy Event” means any of the events described in Section 7.1(e).    “Benchmark” means, initially, with respect to any (a) Obligations, interest, fees, commissions or  other amounts denominated in, or calculated with respect to, Dollars, the Term SOFR Reference Rate;  provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference  Rate or then-current Benchmark for Dollars, then “Benchmark” means, with respect to such Obligations,  interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that  such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.14(c)(i) and  (b) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect  to Euros,  Daily Simple RFR; provided that if a Benchmark Transition Event has occurred with respect to  Daily Simple RFR, or the then-current Benchmark for such Currency, then “Benchmark” means, with  respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark  Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate  pursuant to Section 2.14(c)(i).  “Benchmark Replacement” means, with respect to any Benchmark Transition Event for any then- current Benchmark, the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration  to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for  determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing  





 






  6  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated  credit facilities denominated in the applicable Currency at such time and (b) the related Benchmark  Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less  than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this  Agreement and the other Credit Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the then- current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the  spread adjustment, or method for calculating or determining such spread adjustment, (which may be a  positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower  giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for  calculating or determining such spread adjustment, for the replacement of such Benchmark with the  applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving  or then-prevailing market convention for determining a spread adjustment, or method for calculating or  determining such spread adjustment, for the replacement of such Benchmark with the applicable  Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable  Currency.  “Benchmark Replacement Date” means the earliest to occur of the following events with respect  to the then-current Benchmark for any Currency:  (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the  later of (i) the date of the public statement or publication of information referenced therein and (ii) the  date on which the administrator of such Benchmark (or the published component used in the calculation  thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such  component thereof); or  (b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date  on which such Benchmark (or the published component used in the calculation thereof) has been  determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such  component thereof) to be non-representative; provided that such non-representativeness will be  determined by reference to the most recent statement or publication referenced in such clause (c) and even  if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such  date.  For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred  in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event  or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the  published component used in the calculation thereof).  “Benchmark Transition Event” means, with respect to the then-current Benchmark for any  Currency, the occurrence of one or more of the following events with respect to the then-current  Benchmark:  (a) a public statement or publication of information by or on behalf of the administrator of  such Benchmark (or the published component used in the calculation thereof) announcing that such  administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such  component thereof), permanently or indefinitely; provided that, at the time of such statement or  publication, there is no successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof);  





 






  7  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (b) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof), the FRB,  the Federal Reserve Bank of New York, the central bank for the Currency applicable to such Benchmark,  an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a  resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a  court or an entity with similar insolvency or resolution authority over the administrator for such  Benchmark (or such component), which states that the administrator of such Benchmark (or such  component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such  component thereof) permanently or indefinitely; provided that, at the time of such statement or  publication, there is no successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof); or  (c) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a  specified future date will not be, representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred  with respect to any Benchmark if a public statement or publication of information set forth above has  occurred with respect to each then-current Available Tenor of such Benchmark (or the published  component used in the calculation thereof).  “Benchmark Transition Start Date” means, with respect to the then-current Benchmark for any  Currency, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark  Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of  information of a prospective event, the 90th day prior to the expected date of such event as of such public  statement or publication of information (or if the expected date of such prospective event is fewer than 90  days after such statement or publication, the date of such statement or publication).  “Benchmark Unavailability Period” means, with respect to the then-current Benchmark for any  Currency, the period (if any) (x) beginning at the time that a Benchmark Replacement Date with respect  to such Benchmark pursuant to clause (a) of that definition has occurred if, at such time, no Benchmark  Replacement has replaced such Benchmark for all purposes hereunder and under any Credit Document in  accordance with Section 2.14(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced  such Benchmark for all purposes hereunder and under any Credit Document in accordance with Section  2.14(c)(i).  “Beneficial Ownership Certification” means a certification regarding beneficial ownership as  required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 CFR § 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”.      “Borrower” has the meaning set forth in the first paragraph hereof, together with any successors  or assigns.    





 






  8  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  “Business Day” means any day other than a Saturday, Sunday or legal holiday on which  commercial banks in New York, New York are authorized or required by law to close; provided,  however, that with respect to any Foreign Currency Loan, the term “Business Day” shall also exclude any  day on which banks are not generally open for foreign exchange dealings between banks in the exchange  of the home country of the applicable Foreign Currency.     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for  the benefit of the Administrative Agent, the Issuing Lenders or Swingline Lender (as applicable) and the  Lenders, as collateral for LOC Obligations, obligations in respect of Swingline Loans, or obligations of  Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit  account balances or, if the applicable Issuing Lenders or Swingline Lender benefiting from such collateral  shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and  substance satisfactory to (a) the Administrative Agent and (b) the applicable Issuing Lenders or the  Swingline Lender.  “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) marketable securities issued or directly and fully guaranteed or  insured by the United States of America or any agency thereof (provided that the full faith and credit of  the United States of America is pledged in support thereof) having maturities of not more than twelve  (12) months from the date of acquisition (“Government Obligations”), (b) U.S. dollar denominated (or  foreign currency fully hedged) time deposits, certificates of deposit, Eurodollar time deposits and  Eurodollar certificates of deposit of (i) any United States commercial bank of recognized standing having  capital and surplus in excess of $200,000,000, (ii) any Lender or (iii) any bank whose short-term  commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P- 1 or the equivalent thereof (any such bank and any Lender being an “Approved Bank”), in each case with  maturities of not more than 120 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, 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 120 days of the date of acquisition,  (d) securities of the type described in clauses (a) through (c), inclusive, above purchased under  agreements to resell such securities to any broker/dealer or any commercial bank, if such broker/dealer or  bank has an uninsured, unsecured and unguaranteed rating at the time of the acquisition of P-2 (or the  equivalent thereof) or better by Moody’s, or A-2 (or the equivalent thereof) or better by S&P,  (e) obligations of any state of the United States or any political subdivision thereof for the payment of the  principal and redemption price of and interest on which there shall have been irrevocably deposited  Government Obligations maturing as to principal and interest at times and in amounts sufficient to  provide such payment and (f) Investments in mutual funds registered under the Investment Company Act  of 1940, as amended, or collective trust funds maintained by Approved Banks, in each case whose only  assets are of the type described in clauses (a) through (d), inclusive, of this definition.      “Cash Management Services” means any services provided from time to time to any Credit Party  or Subsidiary in connection with operating, collections, payroll, trust, or other depository or disbursement  accounts, including automatic clearinghouse, controlled disbursement, electronic funds transfer,  information reporting, lockbox, stop payment, overdraft and/or wire transfer services and all other  treasury and cash management services.    “Change in Law” means the occurrence, after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any 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  





 






  9  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and  all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all  requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel  Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign  regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law”, regardless of the date enacted, adopted or issued.    “Change of Control” means (a) any Person or two or more Persons acting in concert shall have  acquired “beneficial ownership” (within the meaning provided in Rule 13d-3 promulgated by the Securities  and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of, or shall  have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon  consummation, will result in its or their acquisition of, or control over, Voting Stock of the Borrower (or  other securities convertible into such Voting Stock) representing 25% or more of the combined voting power  of all Voting Stock of the Borrower, (b) Continuing Directors shall cease for any reason to constitute a  majority of the members of the board of directors of the Borrower then in office, (c) the sale, lease,  transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a  series of related transactions, of all or substantially all of the assets of the Borrower and its Subsidiaries  taken as a whole to any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities  Exchange Act of 1934) or (d) the adoption by the stockholders of the Borrower of a plan or proposal for  the liquidation or dissolution of the Borrower.      “Closing Date” means the date hereof.      “Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto,  as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time.   References to sections of the Code shall be construed also to refer to any successor sections.     “Commitment” means the Revolving Commitments, the LOC Commitment and the Swingline  Commitment, individually or collectively, as appropriate.    “Commitment Fee” has the meaning set forth in Section 2.10(a).       “Commitment Percentage” means, for each Lender, a fraction (expressed as a decimal) the  numerator of which is the Commitment of such Lender at such time and the denominator of which is the  Aggregate Revolving Committed Amount at such time.  The initial Commitment Percentages are set out  on Exhibit 2.1(a).     “Commitment Period” means the period from and including the Closing Date to but not including  the earlier of (a) the Maturity Date, or (b) the date on which the Commitments terminate in accordance  with the provisions of this Agreement.      “Committed Funded Exposure” means, as to any Lender at any time, the aggregate principal  amount at such time of its outstanding Loans, LOC Obligations and Swingline Exposure.    “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.     “Competitive Bid” means an offer by a Lender to make a Competitive Loan pursuant to the terms of  Section 2.2.    





 






  10  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18   “Competitive Bid Rate” means, as to any Competitive Bid made by a Lender in accordance with the  provisions of Section 2.2, the fixed rate of interest offered by the Lender making the Competitive Bid.     “Competitive Bid Request” means a request by the Borrower for Competitive Bids in accordance  with the provisions of Section 2.2(b).     “Competitive Loan” means a loan made by a Lender in its discretion pursuant to the provisions of  Section 2.2.     “Competitive Loan Lenders” means, at any time, those Lenders which have Competitive Loans  outstanding.     “Conforming Changes” means, with respect to the use or administration of an initial Benchmark  or the use, administration, adoption or implementation of any Benchmark Replacement, any technical,  administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the  definition of “Business Day,” the definition of “RFR Business Day,” the definition of “Interest Period” or  any similar or analogous definition (or the addition of a concept of “interest period”), timing and  frequency of determining rates and making payments of interest, timing of borrowing requests or  prepayment, conversion or continuation notices, the applicability and length of lookback periods, the  applicability of Section 2.14 and other technical, administrative or operational matters) that the  Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such  rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially  consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of  such market practice is not administratively feasible or if the Administrative Agent determines that no  market practice for the administration of any such rate exists, in such other manner of administration as  the Administrative Agent decides is reasonably necessary in connection with the administration of this  Agreement and the other Credit Documents).    “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by  net income (however denominated) or that are franchise Taxes or branch profits Taxes.     “Consolidated” means, when used with reference to financial statements or financial items of the  Borrower and its Subsidiaries or any other Person, such statements or items on a consolidated basis in  accordance with the consolidation principles of GAAP.    “Consolidated Assets” means, at any time, the amount representing the assets of the Borrower  and the Subsidiaries that would appear on a Consolidated balance sheet of the Borrower and its  Subsidiaries at such time prepared in accordance with GAAP.    “Consolidated EBITDA” means, as of any date of determination for the four (4) consecutive  fiscal quarter period ending on such date, (a) Consolidated Net Income for such period plus (b) the sum of  the following to the extent deducted in calculating Consolidated Net Income:  (i) Consolidated Interest  Expense for such period, (ii) the provision for Federal, state, local and foreign income taxes incurred by  the Borrower and its Subsidiaries for such period, (iii) depreciation and amortization expense for such  period and (iv) all non-cash items decreasing Consolidated Net Income for such period and minus (c) the  following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and  foreign income tax credits of the Borrower and its Subsidiaries for such period and (ii) all non-cash items  increasing Consolidated Net Income for such period.    “Consolidated Funded Debt” means, as of any date of determination, Funded Debt of the  Borrower and its Subsidiaries on a Consolidated basis.  





 






  11  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    “Consolidated Interest Expense” means, as of any date of determination for the four (4)  consecutive fiscal quarter period ending on such date, all Interest Expense (excluding amortization of debt  discount and premium, but including the interest component under Finance Leases) for such period of the  Borrower and its Subsidiaries on a Consolidated basis.       “Consolidated Net Income” means, as of any date of determination for the four (4) consecutive  fiscal quarter period ending on such date, for the Borrower and its Subsidiaries on a Consolidated basis,  the net income of the Borrower and its Subsidiaries for that period.     “Consolidated Net Tangible Assets” means, at any time, the amount representing the assets of the  Borrower and the Subsidiaries that would appear on a Consolidated balance sheet of the Borrower and its  Subsidiaries at such time prepared in accordance with GAAP, less (a) all current liabilities and minority  interests and (b) goodwill and other intangibles.     “Continuing Directors” means, during any period of up to 12 consecutive months commencing  after the Closing Date, individuals who at the beginning of such 12 month period were directors of the  Borrower (together with any new director whose election by the Borrower’s board of directors or  shareholders was approved by a vote of at least a majority of the directors then still in office who either  were directors at the beginning of such period or whose election was previously so approved).     “Credit Documents” means a collective reference to this Agreement, the Notes, the LOC  Documents, any Joinder Agreement and all other related agreements and documents issued or delivered  hereunder or thereunder or pursuant hereto or thereto (excluding, however, any agreements, instruments  or other documents relating to any Bank Product).      “Credit Exposure” means, as to any Lender at any time (a) if its Commitment is in existence at  such time, the amount of its Commitment and (b) if its Commitment is not in existence at such time, the  amount of its Committed Funded Exposure.     “Credit Party” means any of the Borrower or the Guarantors.     “Credit Party Obligations” means, without duplication, (a) all Obligations and (b) all liabilities  and obligations, whenever arising, owing from any Credit Party or any of its Subsidiaries to any Bank  Product Provider arising under any Bank Product permitted pursuant to Section 6.1(e), but in all cases  excluding Excluded Swap Obligations.     “Currencies” means Dollars and each Foreign Currency, and “Currency” means any of such  Currencies.     “Daily Simple RFR” means, for any day (an “RFR Rate Day”), a rate per annum equal to, for any  Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to  Euros, the greater of (a) €STR for the day (such day, a “Euro RFR Determination Day”) that is five (5)  RFR Business Days prior to (i) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (ii)  if such RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such  RFR Rate Day, in each case, as such €STR is published by the €STR Administrator on the €STR  Administrator’s Website; provided, however, that if by 5:00 p.m. (Brussels time) on the second (2nd) RFR  Business Day immediately following any Euro RFR Determination Day, €STR in respect of such Euro  RFR Determination Day has not been published on the €STR Administrator’s Website and a Benchmark  Replacement Date with respect to the Daily Simple RFR for Euros has not occurred, then €STR for such  Euro RFR Determination Day will be €STR as published in respect of the first preceding RFR Business  





 






  12  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Day for which €STR was published on the €STR Administrator’s Website; provided further that €STR  determined pursuant to this proviso shall be utilized for purposes of calculation of Daily Simple €STR for  no more than three (3) consecutive RFR Rate Days and (b) the Floor. Any change in Daily Simple RFR  due to a change in the applicable RFR shall be effective from and including the effective date of such  change in the RFR without notice to the Borrower.  “Daily Simple RFR Loan” means any Swingline Loan denominated in Euros that bears interest at  a rate based on Daily Simple RFR.  “Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship,  bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,  reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from  time to time in effect.     “Default” means any event, act or condition which with notice or lapse of time, or both, would  constitute an Event of Default.    “Default Rate” means (a) when used with respect to the Obligations, other than Letter of Credit  Fees, an interest rate equal to (i) for Alternate Base Rate Loans (A) the Alternate Base Rate plus (B) the  Applicable Percentage applicable to Alternate Base Rate Loans plus (C) 2.00% per annum, (ii) for Daily  Simple RFR Loans, (A) Daily Simple RFR plus (B) the Applicable Percentage applicable to Daily Simple  RFR Loans plus (C) 2.00% per annum and (iii) for SOFR Loans, (A) Adjusted Term SOFR plus (B) the  Applicable Percentage applicable to SOFR Loans plus (C) 2.00% per annum, (b) when used with respect  to Letter of Credit Fees, a rate equal to the Applicable Percentage applicable to Letter of Credit Fees plus  2.00% per annum and (c) when used with respect to any other fee or amount due hereunder, a rate equal  to the Applicable Percentage applicable to Alternate Base Rate Loans plus 2.00% per annum.     “Defaulting Lender” means, subject to Section 2.23(b) any Lender that, (a) has failed to (i) fund  all or any portion of its Loans within two Business Days of the date such Loans were required to be  funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that  such failure is the result of such Lender’s determination that one or more conditions precedent to funding  (each of which conditions precedent, together with any applicable default, shall be specifically identified  in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Lenders, the  Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in  respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date  when due,  (b) has notified the Borrower, the Administrative Agent, the Issuing Lenders or the Swingline  Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a  public statement to that effect (unless such writing or public statement relates to such Lender’s obligation  to fund a Loan hereunder and states that such position is based on such Lender’s determination that a  condition precedent to funding (which condition precedent, together with any applicable default, shall be  specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three  Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to  the Administrative Agent and the Borrower that it will comply with its prospective funding obligations  hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)  upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or  has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor  Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for  the benefit of creditors or similar Person charged with reorganization or liquidation of its business or  assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory  authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender  shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in  





 






  13  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such  ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts  within the United States or from the enforcement of judgments or writs of attachment on its assets or  permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any  contracts or agreements made with such Lender. Any determination by the Administrative Agent that a  Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent  manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.23(b))  upon delivery of written notice of such determination to the Borrower, the Issuing Lenders, the Swingline  Lender and each Lender.    “Determination Date” means each of the following:  (a) each date a Loan denominated in a  Foreign Currency is made pursuant to Section 2.3, (b) each date a Loan denominated in a Foreign  Currency is continued pursuant to Section 2.3, (c) the last Business Day of each calendar month, (d) such  additional dates as the Administrative Agent or the Required Lenders shall specify.    “Dollar Amount” means, at any time, (a) with respect to Dollars or an amount denominated in  Dollars, such amount and (b) with respect to an amount of any Foreign Currency or an amount  denominated in such Foreign Currency, the equivalent amount thereof in Dollars as determined by the  Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent  Determination Date) for the purchase of Dollars with such Foreign Currency.      “Dollars” and “$” means dollars in lawful currency of the United States of America.    “Domestic Subsidiary” means any Subsidiary that is organized and existing under the laws of the  United States or any state or commonwealth thereof or under the laws of the District of Columbia.    “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of  an institution described in 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 credit institution or investment firm established in any EEA  Member Country.    “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and  (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) the  Issuing Lenders, (iii) the Swingline Lender and (iv) unless an Event of Default has occurred, the  Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding  the foregoing, “Eligible Assignee” shall not include (A) any Credit Party or any of the Credit Party’s  Affiliates or Subsidiaries or (B) any Defaulting Lender (or any of its Affiliates).    “EMU” means Economic and Monetary Union as contemplated in the Treaty on European Union.    





 






  14  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  “EMU Legislation” means legislative measures of the European Council (including without  limitation European Council regulations) for the introduction of, changeover to or operation of a single or  unified European currency (whether known as the Euro or otherwise), being in part the implementation of  the third stage of EMU.    “Environmental Laws” means any and all applicable foreign, federal, state, local or municipal  laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental  Authority regulating, relating to or imposing liability or standards of conduct concerning protection of  human health or the environment, as now or may at any time be in effect during the term of this  Agreement.    “Equity Interests” means (a) in the case of a corporation, capital stock, (b) in the case of an  association or business entity, any and all shares, interests, participations, rights or other equivalents  (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether  general or limited), (d) in the case of a limited liability company, membership interests and (e) any other  interest or participation that confers on a Person the right to receive a share of the profits and losses of, or  distribution of assets of, the issuing Person.       “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any  successor statute thereto, as interpreted by the rules and regulations thereunder, all as the same may be in  effect from time to time.  References to sections of ERISA shall be construed also to refer to any  successor sections.     “ERISA Affiliate” means an entity which is under common control with any Credit Party within  the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes any Credit Party  and which is treated as a single employer under Sections 414(b) or (c) of the Code.     “Erroneous Payment” has the meaning assigned thereto in Section 8.12(a).  “Erroneous Payment Deficiency Assignment” has the meaning assigned thereto in Section  8.12(d).  “Erroneous Payment Impacted Class” has the meaning assigned thereto in Section 8.12(d).  “Erroneous Payment Return Deficiency” has the meaning assigned thereto in Section 8.12(d).    “ESG” has the meaning specified in Section 10.27.    “ESG Amendment” has the meaning specified in Section 10.27.    “ESG Pricing Provisions” has the meaning specified in Section 10.27.    “ESG Ratings” has the meaning specified in Section 10.27.    “€STR” means a rate equal to the Euro Short Term Rate as administered by the €STR  Administrator.    “€STR Administrator” means the European Central Bank (or any successor administrator of the  Euro Short Term Rate).  





 






  15  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  “€STR Administrator’s Website” means the European Central Bank’s website, currently at  http://www.ecb.europa.eu, or any successor source for the Euro Short Term Rate identified as such by the  €STR Administrator from time to time.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor thereto), as in effect from time to time.    “Euro” means the single currency of Participating Member States of the European Union.    “Euro Unit” means the currency unit of the Euro.      “Event of Default” means such term as defined in Section 7.1.    “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 Obligation with respect thereto) 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 and the regulations thereunder at the time the Guaranty of such Guarantor or  the grant of such 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 illegal.    “Excluded Taxes” means any of the following Taxes imposed on or with respect to a 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 applicable lending office located in, the jurisdiction imposing such Tax (or any  political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S.  federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect  to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i)  such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment  request by the Borrower under Section 2.20(b)) or (ii) such Lender changes its lending office, except in  each case to the extent that, pursuant to Section 2.18, 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 2.18(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.       “Existing Credit Agreement” has the meaning set forth in the recitals hereto.     “Existing Letters of Credit” means the letters of credit issued by Wells Fargo prior to the Closing  Date as more particularly described on Exhibit 1.1A attached hereto.    “Existing Maturity Date” has the meaning set forth in Section 2.24(a).    “Extending Lender” means a Lender that elects to extend its Maturity Date in accordance with  Section 2.24.  “Extension Date” has the meaning set forth in Section 2.24(a).  





 






  16  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    “Extension of Credit” means, as to any Lender, the making of a Loan by such Lender, any  conversion of a Loan from one Type to another Type, any extension of any Loan or the issuance,  extension or renewal of, or participation in, a Letter of Credit or Swingline Loan by such Lender.     “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, any agreements entered  into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices  adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental  Authorities entered into in connection with the implementation of the foregoing.      “Federal Funds Rate” has the meaning set forth in the definition of Alternate Base Rate.       “Fees” means all fees payable pursuant to Section 2.10.      “Finance 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 finance lease on the balance sheet of that Person.    “Floor” means a rate of interest equal to 0%.    “Foreign Currency” means (a) Euros and (b) any other freely available currency that is freely  transferable and freely convertible into Dollars and in which dealings in deposits are carried on in the  London interbank market, which shall be requested by the Borrower and approved by the Administrative  Agent and each Lender, such approval not to be unreasonably withheld or delayed; provided, however, to  the extent any Foreign Currency ceases to be freely transferable and freely convertible into Dollars, such  currency shall no longer be considered a Foreign Currency.    “Foreign Currency Equivalent” means, with respect to any amount denominated in Dollars, the  equivalent amount thereof in the applicable Foreign Currency as determined by the Administrative Agent  at such time on the basis of the Spot Rate (determined in respect of the most recent Determination Date)  for the purchase of such Foreign Currency with Dollars.    “Foreign Currency Loan” means any Swingline Loan denominated in a Foreign Currency.    “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than  that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United States  of America, each State thereof and the District of Columbia shall be deemed to constitute a single  jurisdiction.    “FRB” means the Board of Governors of the Federal Reserve System of the United States.   “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any  Issuing Lender, such Defaulting Lender’s Commitment Percentage of the outstanding LOC Obligations  with respect to Letters of Credit issued by such Issuing Lender other than LOC Obligations as to which  such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash  Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such  Defaulting Lender’s Commitment Percentage of outstanding Swingline Loans made by the Swingline  Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has  been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.  





 






  17  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its business.     “Funded Debt” means, with respect to any Person, without duplication, the sum of (a) all  Indebtedness of such Person (other than the Indebtedness set forth in clauses (e), (g), (i) and (j) of such  definition), plus (b) the maximum amount of all letters of credit issued or bankers’ acceptances facilities  created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent  unreimbursed) other than (i) commercial letters of credit, bankers acceptances, or the functional equivalent  thereof issued to support payment obligations in connection with trade payables incurred in the ordinary  course of business and (ii) standby letters of credit having an aggregate stated amount of up to  $15,000,000, plus (c) all Guaranty Obligations of such Person with respect to Indebtedness of another Person  of the type described in clauses (a) and (b) hereof; provided, however, clause (b) shall be deleted in its  entirety following a Senior Note Event to the extent a corresponding provision is not included in the  applicable Note Purchase Agreement.      “GAAP” means generally accepted accounting principles in the United States applied on a  consistent basis and subject to the terms of Section 1.3 hereof.    “Government Acts” has the meaning set forth in Section 2.19(a).    “Governmental Authority” means the government of the United States of America or any other  nation, or of any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,  judicial, taxing, regulatory or administrative powers or functions of or pertaining to government  (including any supra-national bodies such as the European Union or the European Central Bank).    “Guarantors” means (a) any of the Subsidiaries identified as a “Guarantor” on the signature pages  hereto and (b) any Person which executes a Joinder Agreement, together with their successors and  permitted assigns.    “Guaranty” means the guaranty of the Guarantors set forth in Section 9.     “Guaranty Obligations” means, with respect to any Person, without duplication, any obligations of  such Person (other than endorsements in the ordinary course of business of negotiable instruments for deposit  or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner,  whether direct or indirect, and including without limitation any obligation, whether or not contingent, (a) to  purchase any such Indebtedness or any property constituting security therefore, (b) to advance or provide  funds or other support for the payment or purchase of any such Indebtedness or to maintain working capital,  solvency or other balance sheet condition of such other Person (including without limitation keep well  agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit  of any holder of Indebtedness of such other Person, (c) to lease or purchase Property, securities or services  primarily for the purpose of assuring the holder of such Indebtedness of the payment or performance thereof,  or (d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof.   The amount of any Guaranty Obligation shall (subject to any limitations set forth therein) 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 Guaranty Obligation is made or, if not stated or determinable, the  maximum reasonably anticipated liability in respect thereof.    





 






  18  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18   “Hedging Agreements” means, with respect to any Person, any agreement entered into to protect  such Person against fluctuations in interest rates, or currency or raw materials values, including, without  limitation, any interest rate swap, cap or collar agreement or similar arrangement between such Person  and one or more counterparties, any foreign currency exchange agreement, currency protection  agreements, commodity purchase or option agreements or other interest or exchange rate or commodity  price hedging agreements.    “Immaterial Domestic Subsidiary” means, on any date of determination, any Domestic Subsidiary  of the Borrower that, together with its Subsidiaries, (a) generates less than 5% of the Consolidated  revenues of the Borrower and its Subsidiaries on a Pro Forma Basis for the four (4) fiscal quarter period  most recently ended for which financial statements have been delivered (or are required to have been  delivered) under Section 5.1, or (b) owns assets of less than 5% of Consolidated Assets as reflected in the  financial statements most recently delivered on or prior to such date.     “Indebtedness” means, with respect 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 (other than customary reservations or retentions of title under  agreements with suppliers entered into in the ordinary course of business),      (d) all obligations of such Person incurred, issued or assumed as the deferred purchase price of  property or services purchased by such Person that would appear as liabilities on a balance sheet of such  Person and that are (i) due more than six months from the date of incurrence of such obligations or (ii)  evidenced by a note or a similar written instrument, in each case, other than trade debt and other accrued  liabilities incurred in the ordinary course of business that are not overdue by more than 90 days or that are  currently being contested in good faith,     (e) all obligations of such Person under take-or-pay or similar arrangements or under  commodities agreements,      (f) 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; provided that so long as such Indebtedness is non-recourse to such Person, only the  portion of such obligations which is secured shall constitute Indebtedness hereunder,     (g) all Guaranty Obligations of such Person with respect to Indebtedness of another Person,      (h) the principal portion of all obligations of such Person under Finance Leases, synthetic  leases, tax retention operating leases, off-balance sheet loans or similar off-balance sheet financing  products plus any accrued interest thereon,      (i) all obligations of such Person under Hedging Agreements to the extent required to be  accounted for as a liability under GAAP, excluding any portion thereof which would be accounted for as  interest expense under GAAP,     





 






  19  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18   (j) the maximum amount of all letters of credit issued or bankers’ acceptances facilities created  for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent  unreimbursed) other than commercial letters of credit, bankers acceptances, or the functional equivalent  thereof issued to support payment obligations in connection with trade payables incurred in the ordinary  course of business,      (k) all preferred Equity Interests issued by such Person and which by the terms thereof could be  (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments prior to the  date six months after the Maturity Date, redemption prior to the date six months after the Maturity Date or  other acceleration, and     (l) the Indebtedness of any partnership or unincorporated joint venture in which such Person is  a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.    “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.    “Initial Senior Notes” shall have the meaning set forth in the definition of Senior  Notes.     “Insolvency” means, with respect to any Multiemployer Plan, the condition that such Plan is  insolvent within the meaning of such term as used in Section 4245 of ERISA.       “Interest Coverage Ratio” means, as of any date of determination, the ratio of (i) Consolidated  EBITDA for the four (4) consecutive fiscal quarter period ending on such date, to (ii) Consolidated  Interest Expense paid or payable in cash during the four (4) consecutive fiscal quarter period ending on  such date.     “Interest Expense” means, with respect to any Person, as of any date of determination for the four  (4) consecutive fiscal quarter period ending on such date, the sum of the amount of interest paid or  accrued in respect of such period.      “Interest Payment Date” means (a) as to any Alternate Base Rate Loan or Swingline Loan bearing  interest at the Alternate Base Rate or Daily Simple RFR, the last day of each March, June, September and  December and on the Maturity Date, (b) as to any SOFR Loan or Competitive Loan having an Interest  Period of three months or less, the last day of such Interest Period, and (c) as to any SOFR Loan or  Competitive Loan having an Interest Period longer than three months, each day which is three months  after the first day of such Interest Period and the last day of such Interest Period.       “Interest Period” means, (a) as to any SOFR Loan which is a Revolving Loan, a period of one,  three or six months duration, as the Borrower may elect, commencing in each case, on the date of the  borrowing (including conversions, extensions and renewals) and (b) with respect to any Competitive  Loan, a period of not less than seven (7) nor more than 180 days’ duration, as the Borrower may request  and the Competitive Loan Lender may agree in accordance with the provisions of Section 2.2; provided,  however, (i) if any Interest Period that would otherwise end on a day that is not a Business Day, such  Interest Period shall be extended to the next succeeding Business Day unless the result of such extension  would be to carry such Interest Period into another calendar month in which event such Interest Period  shall end on the immediately preceding Business Day, (ii) 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 relevant  calendar month, (iii) any Interest Period in respect of any Loan that would otherwise extend beyond the  





 






  20  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Maturity Date is due on the Maturity Date, (iv) no more than eight (8) Interest Periods may be in effect at  any time and (v) no tenor that has been removed from this definition pursuant to Section 2.14(c)(iv) shall  be available for specification in any Notice of Borrowing or Notice of Extension/Conversion.  For  purposes hereof, SOFR Loans with different Interest Periods shall be considered as separate SOFR Loans,  even if they shall begin on the same date and have the same duration, although borrowings, extensions  and conversions may, in accordance with the provisions hereof, be combined at the end of existing  Interest Periods to constitute a new SOFR Loan with a single Interest Period.      “Investment” has the meaning set forth in Section 6.5.       “Issuing Lender(s)” means Wells Fargo and/or Bank of America, N.A., as applicable, in its  capacity as such.     “Issuing Lender Fees” has the meaning set forth in Section 2.10(c).    “Issuing Lender Sublimit” means (a) with respect to Wells Fargo, $20,000,000 and (b) with  respect to Bank of America, N.A., $20,000,000.     “Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit 5.8,  executed and delivered by each Person required to become a Guarantor in accordance with the provisions  of Section 5.8.     “Joint Fee Letter” means that certain letter agreement, dated as of May 19, 2022, among the  Administrative Agent, Bank of America, N.A. the Lead Arrangers and the Borrower, as amended,  modified, supplemented or replaced from time to time.     “KPIs” has the meaning specified in Section 10.27.     “L/C Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.      “Lead Arrangers” means WFS and BofA Securities, Inc., together with their respective  successors and assigns.      “Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, the  Issuing Lenders and the Swingline Lender, and their respective successors and assigns.     “Lending Office” means, with respect to any Lender, the office of such Lender maintaining such  Lender’s Extensions of Credit, which office may, to the extent the applicable Lender notifies the  Administrative Agent in writing, include an office of any Affiliate of such Lender or any domestic or  foreign branch of such Lender or Affiliate.     “Letters of Credit” means any letter of credit issued by an Issuing Lender pursuant to the terms  hereof and each Existing Letter of Credit, as such letters of credit may be amended, restated, modified,  extended, renewed or replaced from time to time.    “Letter of Credit Amounts” means, unless otherwise specified herein, with respect to any Letter  of Credit, 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 Issuing Lender 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.  





 






  21  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18      “Letter of Credit Fee” has the meaning set forth in Section 2.10(b).    “Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded  Debt as of such date to (b) Consolidated EBITDA for the four (4) consecutive fiscal quarter period ending  on such date; provided, however, following a Senior Note Event, Consolidated Funded Debt shall (other  than with respect to the calculation of Applicable Percentage) be reduced by the amount of Unrestricted  Cash as of such date of determination to the extent a corresponding reduction is included in the applicable  Note Purchase Agreement (it being understood that the proceeds of any simultaneous issuance of  Indebtedness shall not be netted for purposes of any pro forma calculation of the Leverage Ratio).      “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security  interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind (including  any conditional sale or other title retention agreement, any financing or similar statement or notice filed  under the Uniform Commercial Code as adopted and in effect in the relevant jurisdiction or other similar  recording or notice statute, and any lease in the nature thereof).      “Loan” or “Loans” means a Revolving Loan, a Swingline Loan and/or Competitive Loans, as  appropriate.     “LOC Commitment” means the commitment of the Issuing Lenders to issue Letters of Credit and  with respect to each Lender, the commitment of such Lender to purchase participation interests in the  Letters of Credit up to such Lender’s LOC Committed Amount as specified in Exhibit 2.1(a), as such  amount may be reduced from time to time in accordance with the provisions hereof.     “LOC Commitment Percentage” means, for each Lender, the percentage identified as its LOC  Commitment Percentage on Exhibit 2.1(a), as such percentage may be modified in connection with any  assignment made in accordance with the provisions of Section 10.6(c).     “LOC Committed Amount” means, collectively, the aggregate amount of all of the LOC  Commitments of the Lenders to issue and participate in Letters of Credit as referenced in Section 2.4 and,  individually, the amount of each Lender’s LOC Commitment as specified in Exhibit 2.1(a).     “LOC Documents” means, with respect to any Letter of Credit, such Letter of Credit, any  amendments thereto, any documents delivered in connection therewith, any application therefor, and any  agreements, instruments, guarantees or other documents (whether general in application or applicable  only to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties  concerned or (b) any collateral security for such obligations.     “LOC Obligations” means, at any time, the sum of (a) the maximum amount which is, or at any  time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming  compliance with all requirements for drawings referred to in such Letters of Credit plus (b) the aggregate  amount of all drawings under Letters of Credit honored by the Issuing Lenders but not theretofore  reimbursed.  For purposes of computing the amount available to be drawn under any Letter of Credit, the  amount of such Letter of Credit shall be determined in accordance with the definition of Letter of Credit  Amounts.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has  expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14  of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining  available to be drawn.    





 






  22  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18   “Mandatory Borrowing” with respect to (a) Swingline Loans, has the meaning set forth in  Section 2.3(b) and (b) with respect to Letters of Credit, the meaning set forth in Section 2.4(e).    “Material” means material in relation to the business, operations, affairs, financial condition,  assets, or properties of the Borrower and its Subsidiaries taken as a whole.    “Material Domestic Subsidiary” means any Domestic Subsidiary that is not an Immaterial  Domestic Subsidiary.    “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect  upon, the operations, business, properties, liabilities (actual or contingent), or financial condition of the  Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Credit  Parties, taken as a whole, to perform their obligations under this Agreement or any of the other Credit  Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of  this Agreement or any of the other Credit Documents.    “Materials of Environmental Concern” means any gasoline or petroleum (including crude oil or  any fraction thereof) or petroleum products or any hazardous or toxic substances, materials, or wastes,  defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos,  polychlorinated biphenyls and urea-formaldehyde insulation.    “Maturity Date” means, as to each Lender, the later of (a) the fifth (5th) anniversary of the  Closing Date and (b) if the Maturity Date is extended pursuant to Section 2.24 as to any Lender, such  extended Maturity Date as determined pursuant to such section.    “Moody’s” means Moody’s Investors Service, Inc., or any successor or assignee of the business  of such company in the business of rating securities.    “Multiemployer Plan” means a Plan which is a multiemployer plan as defined in  Section 4001(a)(3) of ERISA.      “National Currency Unit” means a fraction or multiple of one Euro Unit expressed in units of the  former national currency of a Participating Member State.    “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (i) requires the approval of all or all affected Lenders in accordance with the terms of  Section 10.01 and (ii) has been approved by the Required Lenders.    “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.    “Non-Extending Lender” has the meaning set forth in Section 2.24(b).    “Non-Guarantor Subsidiaries” means Subsidiaries of the Borrower that are not Guarantors.    “Non-Wholly-Owned Subsidiary” means any Subsidiary that is not a Wholly-Owned Subsidiary.    “Note” or “Notes” means the promissory notes of the Borrower in favor of each of the Lenders  that request such notes (a) evidencing the Revolving Loans and Competitive Loans in substantially the  form attached as Exhibit 2.1(e) or (b) evidencing the Swingline Loans in substantially the form attached  





 






  23  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  as Exhibit 2.3(e), with the foregoing individually or collectively, as appropriate, as such promissory notes  may be amended, modified, supplemented, extended, renewed or replaced from time to time.    “Note Purchase Agreement” means (a) the Note Purchase Agreement, dated May 31, 2018, by  and among the Borrower and the purchasers party thereto, with respect to the Initial Senior Notes, in the  initial aggregate principal amount of $100,000,000 and (b) any other note purchase agreement entered  into by the Borrower in connection with a note issuance pursuant to clause (c) of the definition of Senior  Notes, as each of the same now exists or may hereafter be amended, modified, supplemented, extended,  renewed, restated or replaced.    “Notice Date” has the meaning set forth in Section 2.24(b).    “Notice of Borrowing” means a written notice of borrowing in substantially the form of Exhibit  2.1(b)(i), as required by Section 2.1(b)(i).    “Notice of Extension/Conversion” means the written notice of extension or conversion in  substantially the form of Exhibit 2.7, as required by Section 2.7.    “Obligations” means, without duplication, all of the obligations of the Credit Parties to the  Lenders (including the Issuing Lenders) and the Administrative Agent, whenever arising, under this  Agreement or any of the other Credit Documents (including, but not limited to, any interest accruing after  the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect to any  Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy Code).  In no  event shall the Obligations include any Excluded Swap Obligations.    “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.    “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in  any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any  Loan or 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 (other than an assignment made pursuant to Section 2.20).    “Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the  greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent  (or to the extent payable to an Issuing Lender or the Swingline Lender, such Issuing Lender or Swingline  Lender, as applicable, in each case, with notice to the Administrative Agent) to be customary in the place  of disbursement or payment for the settlement of international banking transactions, and (b) with respect  to any amount denominated in a Foreign Currency, an overnight rate determined by the Administrative  Agent (or to the extent payable to an Issuing Lender or the Swingline Lender, such Issuing Lender or  Swingline Lender, as applicable, in each case, with notice to the Administrative Agent) to be customary  in the place of disbursement or payment for the settlement of international banking transactions; provided  that in no event shall the Overnight Rate be less than 0%.    





 






  24  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18   “Participant” has the meaning set forth in Section 10.6(d).    “Participant Register” has the meaning specified in Section 10.6(d).    “Participating Member State” means each country so described in any EMU Legislation.      “Participation Interest” means the purchase by a Lender of a participation interest in Swingline  Loans as provided in Section 2.3(b)(ii) or in Letters of Credit as provided in Section 2.4(c).    “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools  Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Title III of Pub. L. No.  107-56 (signed into law October 26, 2001)), as amended or modified from time to time.    “Payment Event of Default” means an Event of Default specified in Section 7.1(a).     “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of  Title IV of ERISA.        “Pearl City” means Pearl City Insurance Company, an Arizona corporation.    “Permitted Acquisition” means any acquisition or any series of related acquisitions by the  Borrower or any of its Subsidiaries of substantially all of the assets or a majority of the Voting Stock of a  Person, or any division, line of business or other business unit of a Person (such Person or such division,  line of business or other business unit of such Person referred to herein as the “Target”), in each case that  is a type of business (or assets used in a type of business) permitted to be engaged in by the Credit Parties  and their Subsidiaries pursuant to Section 6.3 hereof, so long as (a) no Default or Event of Default shall  then exist or would exist after giving effect thereto, (b) the Credit Parties will be in compliance on a Pro  Forma Basis with all of the terms and provisions of the financial covenants set forth in Section 5.9 after  giving effect to such acquisition, (c) the Target executes a Joinder Agreement in accordance with, if  required by, the terms of Section 5.8, (d) immediately after giving effect to such acquisition, (i) there shall  be at least $10,000,000 of borrowing availability under the Aggregate Revolving Committed Amount and  (ii) there shall be at least $20,000,000 in the aggregate of Unrestricted Cash and borrowing availability  under the Aggregate Revolving Committed Amount, (e) such acquisition shall not be a “hostile”  acquisition and shall have been approved by the board of directors (or equivalent) and/or shareholders (or  equivalent) of the applicable Credit Party and the Target and (f) if the purchase price for such acquisition  is in excess of $50,000,000, the Borrower delivers a certificate with respect to such acquisition in  accordance with Section 5.2(e).      “Permitted Investments” has the meaning set forth in Section 6.5.    “Permitted Liens” means:    (a) Liens created by or otherwise existing, under or in connection with this  Agreement or the other Credit Documents in favor of the Lenders;    (b) purchase money Liens securing purchase money indebtedness and Liens arising  in connection with Finance Leases, to the extent each is permitted under Section 6.1(d);    (c) Liens for taxes, assessments, charges or other governmental levies not yet due or  as to which the period of grace, if any, related thereto has not expired or which are being  contested in good faith by appropriate proceedings diligently pursued, provided that adequate  





 






  25  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  reserves with respect thereto are maintained on the books of the Borrower or its Subsidiaries, as  the case may be, in conformity with GAAP (or, in the case of Subsidiaries with significant  operations outside of the United States of America, generally accepted accounting principles in  effect from time to time in their respective jurisdictions of incorporation);    (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like  Liens arising in the ordinary course of business which are not overdue for a period of more than  sixty (60) days or which are being contested in good faith by appropriate proceedings diligently  pursued, provided that (i) any proceedings commenced for the enforcement of such Liens and  encumbrances shall have been duly suspended and (ii) adequate reserves with respect thereto are  maintained on the books of the Borrower or its Subsidiaries, as the case may be, in conformity  with GAAP (or, in the case of Subsidiaries with significant operations outside of the United  States of America, generally accepted accounting principles in effect from time to time in their  respective jurisdictions of incorporation);    (e) pledges or deposits in connection with workers’ compensation, unemployment  insurance and other social security legislation and deposits securing liability to insurance carriers  under insurance or self-insurance arrangements;    (f) Liens to secure the performance of bids, trade contracts (other than for borrowed  money), leases, statutory obligations, surety and appeal bonds, performance bonds and other  obligations of a like nature incurred in the ordinary course of business;     (g) Liens existing on the Closing Date and set forth on Schedule 6.2; provided that  no such Lien shall at any time be extended to cover property or assets other than the property or  assets subject thereto on the Closing Date (other than improvements thereto or, if required by the  terms of the document or instrument creating or governing such Lien as in effect on the Closing  Date, additions thereto and replacements and substitutions therefor);    (h) Liens in favor of Pearl City on assets of the Borrower and its Subsidiaries (other  than accounts receivable and inventory) securing extensions of credit from Pearl City to the  Borrower and its Subsidiaries in an aggregate principal amount not to exceed $120,000,000 at any  time outstanding.    (i) Liens arising in the ordinary course of the Borrower’s or any Subsidiary’s  business that (i) do not secure Indebtedness and (ii) do not in the aggregate materially detract  from the value of its assets or materially impair the use thereof in the operation of its business;    (j) Liens at any time of or resulting from any judgment or award, the time for the  appeal or petition for rehearing of which shall not have expired, or in respect of which Borrower  or a Subsidiary shall at any time in good faith be prosecuting an appeal or proceeding for a review  and in respect of which a stay of execution pending such appeal or proceeding for review shall  have been secured;    (k) minor survey exceptions or minor encumbrances, easements or reservations, or  rights of others for rights-of-way, utilities and other similar purposes, or zoning or other  restrictions as to the use of real properties, which customarily exist on properties of corporations  engaged in similar activities and similarly situated and which do not in any event materially  impair their use in the operation of the business of Borrower and the Subsidiaries;    





 






  26  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (l) (i) Liens in favor of a Credit Party securing Indebtedness of another Credit Party  or a Non-Guarantor Subsidiary, and (ii) Liens in favor of a Non-Guarantor Subsidiary securing  indebtedness of another Non-Guarantor Subsidiary;     (m) customary rights of setoff, revocation, refund or chargeback under deposit  agreements or under applicable law, of banks or other financial institutions where the Borrower  or its Subsidiaries maintain deposits in the ordinary course of business;    (n) any extension, renewal or replacement (or successive extensions, renewals or  replacements), in whole or in part, of any Lien referred to in the foregoing clauses; provided that  such extension, renewal or replacement Lien shall be limited to all or a part of the property which  secured the Lien so extended, renewed or replaced (plus improvements on such property);     (o) Reserved;     (p) Liens in favor of the Issuing Lenders and/or Swingline Lender to cash  collateralize or otherwise secure the obligations of a Defaulting Lender to fund risk participations  hereunder; and    (q) other Liens in addition to those permitted by the foregoing clauses secured by  assets of the Borrower and its Subsidiaries with a fair market value not to exceed 7.5% of  Consolidated Net Tangible Assets determined at such time; provided that the Indebtedness  secured by such Liens shall not exceed 7.5% of Consolidated Net Tangible Assets.     “Person” means any individual, partnership, joint venture, firm, corporation, limited liability  company, association, trust or other enterprise (whether or not incorporated) or any Governmental  Authority.    “Plan” means any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered  by ERISA and with respect to which any Credit Party or any ERISA Affiliate is (or, if such plan were  terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined  in Section 3(5) of ERISA.    “Prime Rate” has the meaning set forth in the definition of Alternate Base Rate.     “Pro Forma Basis” means, with respect to any transaction, that such transaction shall be deemed to  have occurred as of the first day of the twelve-month period ending as of the most recent quarter end  preceding the date of such transaction.     “Properties” has the meaning given to such term in Section 3.13(a).    “Property” means any interest in any kind of property or asset, whether real, personal or mixed,  or tangible or intangible.    “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.    “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has  total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security  interest becomes effective with respect to such Swap Obligation or such other person as constitutes an  “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated  





 






  27  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  thereunder and can cause another person to qualify as an “eligible contract participant” at such time by  entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.    “Qualified Permitted Acquisition” means a Permitted Acquisition where the purchase price is  equal to or greater than $50,000,000.      “Recipient” means (a) the Administrative Agent, (b) any Lender, (c) the Swingline Lender or (d)  any Issuing Lender, as applicable.     “Recovery Event” means the receipt by the Borrower or any of its Subsidiaries of any cash  insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or  damage, taking or similar event with respect to any of their respective property or assets.    “Register” has the meaning set forth in Section 10.6(c).    “Regulation T, U or X” means Regulation T, U or X, respectively, of the Board of Governors of  the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.    “Reimbursement Obligation” means the obligation of the Borrower to reimburse the Issuing  Lenders pursuant to Section 2.4(d) for amounts drawn under the Letters of Credit.    “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s  Affiliates.    “Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect  of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to,  Dollars, the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or  convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto and (b) with  respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other  amounts denominated in, or calculated with respect to, any Foreign Currency, (i) the central bank for the  Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or  calculated with respect to, or any central bank or other supervisor which is responsible for supervising  either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement or (ii)  any working group or committee officially endorsed or convened by (A) the central bank for the Currency  in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated  with respect to, (B) any central bank or other supervisor that is responsible for supervising either (1) such  Benchmark Replacement or (2) the administrator of such Benchmark Replacement, (C) a group of those  central banks or other supervisors or (D) the Financial Stability Board or any part thereof.    “Reorganization” means, with respect to any Multiemployer Plan, the condition that such Plan is  in reorganization within the meaning of such term as used in Section 4241 of ERISA.       “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  those events as to which the thirty-day notice period is waived under PBGC Reg. §4043.      “Required Lenders” means, as of any date of determination, Lenders collectively having Credit  Exposures representing more than 50% of the Credit Exposures of all Lenders; provided that the Credit  Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.    





 






  28  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  “Requirement of Law” means, as to any Person, (a) the articles or certificate of incorporation, by- laws or other organizational or governing documents of such Person, and (b) all international, foreign,  Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive  orders, and administrative or judicial precedents or authorities, including the interpretation or  administration thereof by any Governmental Authority charged with the enforcement, interpretation or  administration thereof, and all applicable administrative orders, directed duties, requests, licenses,  authorizations and permits of, and agreements with, any Governmental Authority (in each case whether or  not having the force of law); in each case applicable to or binding upon such Person or any of its property  or to which such Person or any of its material property is subject.    “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.    “Responsible Officer” means, for any Credit Party, the chief executive officer, the treasurer,  controller, the president, the vice-president or the chief financial officer of such Credit Party and any  additional responsible officer that is designated as such to the Administrative Agent.       “Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to  make Revolving Loans in an aggregate principal Dollar Amount at any time outstanding up to such  Lender’s Revolving Committed Amount as specified in Exhibit 2.1(a), as such amount may be reduced or  increased from time to time in accordance with the provisions hereof.     “Revolving Committed Amount” means the amount of each Lender’s Commitment as specified  in Exhibit 2.1(a) or in the Assignment and Assumption Agreement pursuant to which such Person  becomes a Lender hereunder, as such amount may be reduced or increased from time to time in  accordance with the provisions hereof.     “Revolving Loans” has the meaning set forth in Section 2.1(a).     “Revolving Note” means a promissory note of the Borrower in favor of a Lender evidencing the  Revolving Loans made by that Lender, in substantially the form set forth in Exhibit 2.1(e), as such  promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to  time.    “RFR” means, for any Obligations, interest, fees, commissions or other amounts denominated in,  or calculated with respect to, (a) Dollars, Term SOFR and (b) Euros, €STR.  “RFR Business Day” means, for any Obligations, interest, fees, commissions or other amounts  denominated in, or calculated with respect to, (a) Dollars, any day except for (i) a Saturday, (ii) a Sunday  or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the  fixed income departments of its members be closed for the entire day for purposes of trading in United  States government securities and (b) Euros, any day that is a TARGET Day; provided, that for purposes  of notice requirements in Sections 2.1(b), 2.7, and 2.8(a), in each case, such day is also a Business Day.  “RFR Loan” means a Daily Simple RFR Loan or a SOFR Loan, as the context may require.  “RFR Rate Day” has the meaning assigned thereto in the definition of “Daily Simple RFR”.  “S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or any  successor or assignee of the business of such division.    





 






  29  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  “Sanctions” means any and all economic or financial sanctions, sectoral sanctions, secondary  sanctions, trade embargoes and anti-terrorism laws, including but not limited to those imposed,  administered or enforced from time to time by the U.S. government (including those administered by  OFAC or the U.S. Department of State), the United Nations Security Council, the European Union, Her  Majesty’s Treasury, or other relevant sanctions authority with jurisdiction over any Lender, the Borrower  or any of its Subsidiaries or Affiliates.    “Sanctioned Country” means at any time, a country or territory which is itself the subject or target  of any Sanctions (including, as of the Closing Date, the so-called Donetsk People’s Republic, the so- called Luhansk People’s Republic, Cuba, Iran, North Korea, Sudan, Syria and Crimea).    “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of  designated Persons maintained by OFAC (including, without limitation, OFAC’s Specially Designated  Nationals and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the U.S. Department of  State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other  relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or  (c) any Person owned or controlled by any such Person or Persons described in clauses (a) and (b),  including a Person that is deemed by OFAC to be a Sanctions target based on the ownership of such legal  entity by Sanctioned Peron(s) or (d) any Person otherwise a target of Sanctions, including vessels and  aircraft, that are designated under any Sanctions program.    “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.     “Security” means “security” as defined in Section 2(1) of the Securities Act of 1933, as amended.    “Senior Notes” means (a) the Borrower’s $50,000,000 4.22% Series A Senior Notes due May 31,  2025 (the “Series A Notes”), (b) the Borrower’s $50,000,000 4.40% Series B Senior Notes due May 31,  2028 (the “Series B Notes”, together with the Series A Notes, the “Initial Senior Notes”) and (c) any  additional series of senior notes of the Borrower; provided, that, in the case of clause (c), (i) such senior  notes shall be unsecured, (ii) the representations, covenants and events of default in respect of such senior  notes (other than interest rate and fees) are either (A) substantially similar to those in respect of the Initial  Senior Notes (as reasonably determined by the Borrower in good faith) or (B) no more restrictive on the  applicable obligor than the representations, covenants and Events of Default hereof (as reasonably  determined by the Borrower in good faith) and (iii) the scheduled maturity date of such senior notes shall  be no earlier than six months following the Maturity Date and such Indebtedness shall not be subject to  amortization or mandatory prepayment (other than upon a change of control or upon acceleration as a  result of a default under such Indebtedness) prior to such date.  For the avoidance of doubt, no Note  Purchase Agreement may be amended after the Closing Date in a manner that makes the representations,  covenants and events of default contained therein more restrictive on the applicable obligor than the  representations, covenants and Events of Default hereof (as reasonably determined by the Borrower in  good faith).    “Senior Note Event” means either (a) the payment in full and termination of all Senior Notes or  (b) with respect to any applicable provision contained herein (the “Applicable Provision”), (i) an  amendment to the applicable Note Purchase Agreement to revise or remove the corresponding Applicable  Provision contained in such Note Purchase Agreement (or to conform any Applicable Provision that  would apply after such Senior Note Event) or (ii) the issuance of new Senior Notes that do not include a  corresponding Applicable Provision, or contain an Applicable Provision that has been conformed to the  Applicable Provision that would apply after such Senior Note Event.    





 






  30  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18   “Single Employer Plan” means any Plan covered by title IV of ERISA which is not a  Multiemployer Plan.      “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR  Administrator.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).   “SOFR Loan” means any Loan bearing interest at a rate based on Adjusted Term SOFR as  provided in Section 2.1(b), other than pursuant to clause (c) of the definition of Alternate Base Rate.    “Spot Rate” means, with respect to any Foreign Currency, the rate quoted by Wells Fargo as the  spot rate for the purchase by Wells Fargo of such Foreign Currency with Dollars through its principal  foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the  date as of which the foreign exchange computation is made.     “Subordinated Indebtedness” means any Indebtedness (including, without limitation, any  intercompany loans) incurred by any Credit Party that is specifically subordinated in right of payment to  the prior payment of the Credit Party Obligations on terms acceptable to the Administrative Agent and the  Lenders.     “Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or  other entity of which shares of stock or other ownership interests having ordinary voting power to elect a  majority of the directors or other managers of such corporation, partnership, limited liability company or  other entity (irrespective of whether or not at the time, any class or classes of such corporation shall have  or might have voting power by reason of the happening of any contingency) are at the time owned by  such Person directly or indirectly through Subsidiaries.  Unless otherwise identified, “Subsidiary” or  “Subsidiaries” means Subsidiaries of the Borrower.    “Sustainability Structuring Agents” has the meaning specified in Section 10.27.    “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.     “Swingline Commitment” means the commitment of the Swingline Lender to make Swingline  Loans in an aggregate principal amount at any time outstanding up to the Swingline Committed Amount,  and the commitment of the Lenders to purchase participation interests in the Swingline Loans as provided  in Section 2.3(b)(ii), as such amounts may be reduced from time to time in accordance with the provisions  hereof.     “Swingline Committed Amount” means the amount of the Swingline Lender’s Swingline  Commitment as specified in Section 2.3(a).     “Swingline Exposure” means, with respect to any Lender, an amount equal to the Commitment  Percentage of such Lender multiplied by the principal amount of outstanding Swingline Loans.     “Swingline Lender” means Wells Fargo, in its capacity as such.     “Swingline Loan” or “Swingline Loans” has the meaning set forth in Section 2.3(a).  





 






  31  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18     “Swingline Note” means the promissory note of the Borrower in favor of the Swingline Lender  evidencing the Swingline Loans provided pursuant to Section 2.3(e), as such promissory note may be  amended, modified, supplemented, extended, renewed or replaced from time to time.     “Target” has the meaning set forth in the definition of Permitted Acquisition.    “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express  Transfer payment system which utilizes a single shared platform and which was launched on November  19, 2007.   “TARGET Day” means any day on which TARGET2 is open for the settlement of payments in  Euros.    “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings,  assessments, fees or other charges imposed by any Governmental Authority, including any interest,  additions to tax or penalties applicable thereto.    “Term SOFR” means,   (a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a  tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR  Determination Day”) that is two (2) RFR Business Days prior to the first day of such Interest Period, as  such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m.  (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the  applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement  Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term  SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding  RFR Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term  SOFR Administrator so long as such first preceding RFR Business Day is not more than three (3) RFR  Business Days prior to such Periodic Term SOFR Determination Day, and  (b) for any calculation with respect to an Alternate Base Rate Loan on any day, the Term  SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR  Determination Day”) that is two (2) RFR Business Days prior to such day, as such rate is published by the  Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Base Rate  Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been  published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term  SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for  such tenor as published by the Term SOFR Administrator on the first preceding RFR Business Day for  which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator  so long as such first preceding RFR Business Day is not more than three (3) RFR Business Days prior to  such Base Rate SOFR Determination Day.  “Term SOFR Adjustment” means a percentage equal to 0.10% per annum.  “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or  a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its  reasonable discretion).  “Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.  





 






  32  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  “Trade Date” has the meaning specified in Section 10.6(h)(i).    “Transactions” means the closing of this Agreement and the other Credit Documents and the  other transactions contemplated hereby to occur in connection with such closing (including, without  limitation, the initial borrowings under the Credit Documents and the payment of fees and expenses in  connection with all of the foregoing).    “Treaty on European Union” means the Treaty of Rome of March 25, 1957, as amended by the  Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht on February 1,  1992 and came into force on November 1, 1993), as amended from time to time.    “Type” means, as to any Loan, its nature as an Alternate Base Rate Loan, SOFR Loan or  Swingline Loan, as the case may be.    “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from  time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain  credit institutions and investment firms, and certain affiliates of such credit institutions or investment  firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.    “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding  the related Benchmark Replacement Adjustment.    “Unrestricted Cash” means, as of any date of determination, cash and Cash Equivalents of the  Credit Parties on deposit that are readily available to the Credit Parties without causing any adverse tax  consequences and that are not subject to any Lien other than a Lien in favor of the Administrative Agent,  on behalf of the Lenders.    “U.S. Borrower” means any Borrower that is a U.S. Person.    “U.S. Person” means any Person that is a “United States Person” as defined in Section  7701(a)(30) of the Code.    “U.S. Tax Compliance Certificate” has the meaning specified in Section 2.18.    “Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the  holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of  directors (or persons performing similar functions) of such Person, even though the right so to vote has  been suspended by the happening of such a contingency.    “Wells Fargo” means Wells Fargo Bank, National Association and its successors.    “WFS” means Wells Fargo Securities, LLC.    “Wholly-Owned Subsidiary” means, at any time, any Subsidiary of which all of the equity  interests (except directors’ qualifying shares or shares aggregating less than 1% of the outstanding shares  





 






  33  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  of such Subsidiary which are owned by individuals) and voting interests are owned by any one or more of  the Borrower and the Borrower’s other Wholly-Owned Subsidiaries at such time.    “Withholding Agent” means the Borrower and the Administrative Agent.    “Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the  Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers  are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any  powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or  change the form of a liability of any UK Financial Institution or any contract or instrument under which  that liability arises, to convert all or part of that liability into shares, securities or obligations of that  person or any other person, to provide that any such contract or instrument is to have effect as if a right  had been exercised under it or to suspend any obligation in respect of that liability or any of the powers  under that Bail-In Legislation that are related to or ancillary to any of those powers.    1.2 Computation of Time Periods, Etc.     All time references in this Agreement and the other Credit Documents shall be to New York,  New York time unless otherwise indicated.  For purposes of computation of periods of time hereunder,  the word “from” means “from and including” and the words “to” and “until” each mean “to but  excluding.”    1.3 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 most recently delivered audited Consolidated  financial statements of the Borrower, 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 the  Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal  amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities  shall be disregarded.    (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 the  Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the  Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original  intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);  provided that, until so amended, (i) such ratio or requirement shall continue to be computed in  accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the  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 other provision contained herein, all obligations of any Person that  are or would have been treated as operating leases for purposes of GAAP prior to the  effectiveness of FASB ASC 842 shall continue to be accounted for as operating leases for  purposes of all financial definitions and calculations for purpose of this Agreement (whether or  





 






  34  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  not such operating lease obligations were in effect on such date) notwithstanding the fact that  such obligations are required in accordance with FASB ASC 842 (on a prospective or retroactive  basis or otherwise) to be listed on the balance sheet in the financial statements.    (c) Financial Covenant Calculations.  The parties hereto acknowledge and agree that,  for purposes of all calculations made in determining compliance for any applicable period with  the financial covenants set forth in Section 5.9 and for purposes of determining the Applicable  Percentage, (i) after consummation of any Permitted Acquisition, (A) income statement items and  other balance sheet items (whether positive or negative) attributable to the Target acquired in  such transaction shall be included in such calculations to the extent relating to such applicable  period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent  and (B) Indebtedness of a Target which is retired in connection with a Permitted Acquisition shall  be excluded from such calculations and deemed to have been retired as of the first day of such  applicable period and (ii) after any asset disposition permitted by Section 6.4, (A) income  statement items, cash flow statement items and balance sheet items (whether positive or negative)  attributable to the property or assets disposed of shall be excluded in such calculations to the  extent relating to such applicable period, subject to adjustments mutually acceptable to the  Borrower and the Administrative Agent and (B) Indebtedness that is repaid with the proceeds of  such asset disposition shall be excluded from such calculations and deemed to have been repaid  as of the first day of such applicable period.    1.4 Exchange Rates; Currency Equivalents.    (a) The Administrative Agent shall determine the Spot Rates as of each  Determination Date to be used for calculating the Dollar Amounts of Extensions of Credit and  amounts outstanding hereunder denominated in Foreign Currencies.  Such Spot Rates shall  become effective as of such Determination Date and shall be the Spot Rates employed in  converting any amounts between the applicable currencies until the next Determination Date to  occur.  Except for purposes of financial statements delivered by the Borrower hereunder or  calculating financial covenants hereunder or except as otherwise provided herein, the applicable  amount of any currency for purposes of the Credit Documents shall be such Dollar Amount as so  determined by the Administrative Agent.    (b) Wherever in this Agreement, in connection with any Extension of Credit, any  conversion, continuation or prepayment of a Loan or any renewal of a Letter of Credit, an  amount, such as a required minimum or multiple amount, is expressed in Dollars, but such  Extension of Credit or Loan is denominated in a Foreign Currency, such amount shall be the  relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest 1,000 units  of such Foreign Currency), as determined by the Administrative Agent.    1.5 Redenomination of Certain Foreign Currencies and Computation of Dollar Amounts.    (a) Each obligation of the Borrower to make a payment denominated in the National  Currency Unit of any member state of the European Union that adopts the Euro as its lawful  currency after the date hereof shall be redenominated into Euros at the time of such adoption (in  accordance with the EMU Legislation).  If, in relation to the currency of any such member state,  the basis of accrual of interest expressed in this Agreement in respect of that currency shall be  inconsistent with any convention or practice in the London interbank market for the basis of  accrual of interest in respect of the Euro, such expressed basis shall be replaced by such  convention or practice with effect from the date on which such member state adopts the Euro as  its lawful currency; provided that if any Extension of Credit in the currency of such member state  





 






  35  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  is outstanding immediately prior to such date, such replacement shall take effect, with respect to  such Extension of Credit, at the end of the then current Interest Period.    (b) Each provision of this Agreement shall be subject to such reasonable changes of  construction as the Administrative Agent may from time to time specify to be appropriate to  reflect the adoption of the Euro by any member state of the European Union and any relevant  market conventions or practices relating to the Euro.    1.6 Execution of Documents.    Unless otherwise specified, all Credit Documents and all other certificates executed in connection  therewith must be signed by an Authorized Officer.    1.7 Rates.    The Administrative Agent does not warrant or accept any responsibility for, and shall not have  any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or  any other matter related to Daily Simple RFR, the Term SOFR Reference Rate, Adjusted Term SOFR or  Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or with  respect to any alternative, successor or replacement rate thereto (including any Benchmark Replacement),  including whether the composition or characteristics of any such alternative, successor or replacement  rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section  2.14(c), will be similar to, or produce the same value or economic equivalence of, or have the same  volume or liquidity as, Daily Simple RFR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term  SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect,  implementation or composition of any Conforming Changes.  The Administrative Agent and its Affiliates  or other related entities may engage in transactions that affect the calculation of a Benchmark, any  alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant  adjustments thereto and such transactions may be adverse to the Borrower.  The Administrative Agent  may select information sources or services in its reasonable discretion to ascertain any Benchmark, any  component definition thereof or rates referred to in the definition thereof, in each case pursuant to the  terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or  entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential  damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity),  for any error or calculation of any such rate (or component thereof) provided by any such information  source or service.    1.8 Divisions.    For all purposes under the Credit Documents, in connection with any division or plan of division  under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right,  obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person,  then it shall be deemed to have been transferred from the original Person to the subsequent Person, and  (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on  the first date of its existence by the holders of its Equity Interests at such time.    





 






  36  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  SECTION 2  CREDIT FACILITY    2.1 Revolving Loans.    (a) Commitment.  During the Commitment Period, subject to the terms and  conditions hereof, each Lender severally agrees to make Loans in Dollars (the “Revolving  Loans”) to the Borrower from time to time in the amount of such Lender’s Commitment  Percentage of such Loans for the purposes hereinafter set forth; provided that (i) with regard to  the Lenders collectively, the sum of the aggregate principal Dollar Amount of outstanding  Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations plus  outstanding Competitive Loans shall not exceed the Aggregate Revolving Committed Amount,  and (ii) with regard to each Lender individually, the sum of the aggregate principal Dollar  Amount of such Lender’s Commitment Percentage of outstanding Revolving Loans plus such  Lender’s Revolving Commitment Percentage of outstanding Swingline Loans plus such Lender’s  LOC Commitment Percentage of outstanding LOC Obligations shall not exceed such Lender’s  Revolving Committed Amount.  Revolving Loans may consist of Alternate Base Rate Loans or  SOFR Loans, or a combination thereof, as the Borrower may request, and may be repaid and  reborrowed in accordance with the provisions hereof.    (b) Revolving Loan Borrowings.    (i) Notice of Borrowing.  The Borrower shall request a Loan borrowing by  delivering a Notice of Borrowing (or telephone notice promptly confirmed in writing  through a Notice of Borrowing) to the Administrative Agent not later than 11:00 A.M. on  the Business Day of the requested borrowing in the case of Alternate Base Rate Loans,  and on the third RFR Business Day prior to the date of the requested borrowing in the  case of SOFR Loans.  Each such Notice of Borrowing shall be irrevocable and shall  specify (A) that a Loan is requested, (B) the date of the requested borrowing (which shall  be a Business Day), (C) the aggregate principal amount to be borrowed, and (D) whether  the borrowing shall be comprised of Alternate Base Rate Loans, SOFR Loans or a  combination thereof, and if SOFR Loans are requested, the Interest Period(s) therefor.  If  the Borrower shall fail to specify in any such Notice of Borrowing (1) an applicable  Interest Period in the case of a SOFR Loan, then such notice shall be deemed to be a  request for an Interest Period of one month, or (2) the Type of Loan requested, then such  notice shall be deemed to be a request for an Alternate Base Rate Loan hereunder.  The  Administrative Agent shall give notice to each Lender, promptly upon receipt of each  Notice of Borrowing pursuant to this Section 2.1(b)(i), of the contents thereof and of each  such Lender’s share of any borrowing to be made pursuant thereto.    (ii) Minimum Amounts.  Each Revolving Loan shall be in a minimum  aggregate principal amount of (A) in the case of SOFR Loans, $2,000,000 and integral  multiples of $1,000,000 in excess thereof (or the remaining Aggregate Revolving  Committed Amount, if less) and (B) in the case of Alternate Base Rate Loans, $1,000,000  and integral multiples of $500,000 in excess thereof (or the remaining Aggregate  Revolving Committed Amount, if less).    (iii) Advances.  Each Lender will make its Commitment Percentage of each  Loan borrowing available to the Administrative Agent for the account of the Borrower at  the office of the Administrative Agent specified in Section 10.2, or at such office as the  Administrative Agent may designate in writing, by 1:00 P.M. on the date specified in the  





 






  37  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  applicable Notice of Borrowing in Dollars and in funds immediately available to the  Administrative Agent.  Such borrowing will then be made available to the Borrower by  the Administrative Agent by crediting the account designated by the Borrower with the  aggregate of the amounts made available to the Administrative Agent by the Lenders and  in like funds as received by the Administrative Agent.    (c) Repayment.  The principal amount of all Loans shall be due and payable in full  on the Maturity Date.    (d) Interest.  Subject to the provisions of Section 2.6:    (i) Alternate Base Rate Loans.  During such periods as Loans shall be  comprised in whole or in part of Alternate Base Rate Loans, such Alternate Base Rate  Loans shall bear interest at a per annum rate equal to the Alternate Base Rate plus the  Applicable Percentage;    (ii) SOFR Loans.  During such periods as Loans shall be comprised in whole  or in part of SOFR Loans, such SOFR Loans shall bear interest at a per annum rate equal  to Adjusted Term SOFR plus the Applicable Percentage.    Interest on Loans shall be payable in arrears on each applicable Interest Payment Date (or at such other  times as may be specified herein).    (e) Notes.  The Loans shall be further evidenced by a duly executed Note in favor of  each Lender in the form of Exhibit 2.1(e) attached hereto, if requested by such Lender.    2.2 Competitive Loan Subfacility.    (a) Competitive Loans. Subject to the terms and conditions hereof and in reliance upon  the representations and warranties set forth herein, the Borrower may, during the Commitment  Period, request and each Lender may, in its sole discretion, agree to make, Competitive Loans to the  Borrower; provided, however, that (i) with regard to each Lender individually, the sum of such  Lender’s share of outstanding Revolving Loans plus such Lender’s Revolving Commitment  Percentage of outstanding Swingline Loans plus such Lender’s LOC Commitment Percentage of  outstanding LOC Obligations shall not exceed such Lender’s Revolving Committed Amount,  (ii) with regard to the Lenders collectively, the sum of the aggregate amount of outstanding  Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations plus  outstanding Competitive Loans shall not exceed the Aggregate Revolving Committed Amount  and (iii) with regard to the Lenders collectively, the sum of the aggregate amount of outstanding  Competitive Loans shall not exceed 50% of the Aggregate Revolving Committed Amount (less  any outstanding Revolving Loans or other Extensions of Credit).  Each Competitive Loan shall be  not less than $5,000,000 in the aggregate and integral multiples of $1,000,000 in excess thereof (or  the remaining portion of the Revolving Committed Amount, if less).    (b) Competitive Bid Requests.  The Borrower may solicit Competitive Bids by delivery  of a Competitive Bid Request substantially in the form of Exhibit 2.2(b)-1 to the Administrative  Agent by 12:00 noon on a Business Day not less than three (3) Business Days prior to the date of a  requested Competitive Loan borrowing.  A Competitive Bid Request shall specify (i) the date of the  requested Competitive Loan borrowing (which shall be a Business Day), (ii) the amount of the  requested Competitive Loan borrowing and (iii) the applicable Interest Periods requested.  The  Administrative Agent shall, promptly following its receipt of a Competitive Bid Request under this  





 






  38  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  subsection (b), notify the affected Lenders of its receipt and the contents thereof and invite the  Lenders to submit Competitive Bids in response thereto.  A form of such notice is provided in  Exhibit 2.2(b)-2.  No more than three (3) Competitive Bid Requests (e.g., the Borrower may request  Competitive Bids for no more than three (3) different Interest Periods at a time) shall be submitted at  any one time and Competitive Bid Requests may be made no more frequently than once every  three (3) Business Days (unless the Administrative Agent otherwise agrees).    (c) Competitive Bid Procedure.  Each Lender may, in its sole discretion, make one or  more Competitive Bids to the Borrower in response to a Competitive Bid Request.  Each  Competitive Bid must be received by the Administrative Agent not later than 10:00 A.M. on the  Business Day next succeeding the date of receipt by the Administrative Agent of the related  Competitive Bid Request.  A Lender may offer to make all or part of the requested Competitive Loan  borrowing and may submit multiple Competitive Bids in response to a Competitive Bid Request.   The Competitive Bid shall specify (i) the particular Competitive Bid Request as to which the  Competitive Bid is submitted, (ii) the minimum (which shall be not less than $1,000,000 and integral  multiples of $500,000 in excess thereof) and maximum principal amounts of the requested  Competitive Loan or Loans as to which the Lender is willing to make, and (iii) the applicable interest  rate or rates and Interest Period or Periods therefor.  A form of such Competitive Bid is provided in  Exhibit 2.2(c).  A Competitive Bid submitted by a Lender in accordance with the provisions hereof  shall be irrevocable.  The Administrative Agent shall promptly (and in any event by no later than  11:00 A.M. on the Business Day next succeeding the date of receipt by the Administrative Agent of  the related Competitive Bid Request) notify the Borrower of all Competitive Bids made and the  terms thereof.  The Administrative Agent shall send a copy of each of the Competitive Bids to the  Borrower for its records as soon as practicable.    (d) Submission of Competitive Bids by Administrative Agent.  If the Administrative  Agent, in its capacity as a Lender, elects to submit a Competitive Bid in response to any Competitive  Bid Request, it shall submit such Competitive Bid directly to the Borrower one-half of an hour  earlier than the latest time at which the other Lenders are required to submit their Competitive Bids  to the Administrative Agent in response to such Competitive Bid Request pursuant to subsection (c)  above.     (e) Acceptance of Competitive Bids.  The Borrower may, in its sole and absolute  discretion, subject only to the provisions of this subsection (e), accept or refuse any Competitive Bid  offered to it.  To accept a Competitive Bid, the Borrower shall give written notification (or telephonic  notice promptly confirmed in writing) substantially in the form of Exhibit 2.2(e) of its acceptance of  any or all such Competitive Bids to the Administrative Agent by 12:00 noon on the date on which  notice of election to make a Competitive Bid is to be given to the Administrative Agent by the  Lenders; provided, however, (i) the failure by the Borrower to give timely notice of its acceptance of  a Competitive Bid shall be deemed to be a refusal thereof, (ii) the Borrower may accept Competitive  Bids only in ascending order of rates within each Interest Period, (iii) the aggregate amount of  Competitive Bids accepted by the Borrower shall not exceed the principal amount specified in the  Competitive Bid Request, (iv) the Borrower may accept a portion of a Competitive Bid if, and to the  extent, acceptance of the entire amount thereof would cause the Borrower to exceed the principal  amount specified in the Competitive Bid Request, subject however to the minimum amounts  provided herein (and provided that where two or more Lenders submit such a Competitive Bid at the  same Competitive Bid Rate, then portions of such Competitive Bids shall be accepted pro rata  between or among such Lenders) and (v) no bid shall be accepted for a Competitive Loan unless  such Competitive Loan is in a minimum principal amount of $1,000,000 and integral multiples of  $500,000 in excess thereof, except that where a portion of a Competitive Bid is accepted in  accordance with the provisions of subsection (iv) hereof, then in a minimum principal amount of  





 






  39  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  $500,000 and integral multiples of $100,000 in excess thereof (but not in any event less than the  minimum amount specified in the Competitive Bid), and in calculating the pro rata allocation of  acceptances of portions of multiple bids at a particular Competitive Bid Rate pursuant to subsection  (iv) hereof, the amounts shall be rounded to integral multiples of $100,000 in a manner which shall  be in the discretion of the Borrower.  A notice of acceptance of a Competitive Bid given by the  Borrower in accordance with the provisions hereof shall be irrevocable.  The Administrative Agent  shall, not later than 1:00 P.M. on the date of receipt by the Administrative Agent of a notification  from the Borrower of its acceptance and/or refusal of Competitive Bids, notify each affected Lender  of its receipt and the contents thereof, and each successful bidding Lender will thereupon become  bound, subject to the other applicable conditions hereof, to make the Competitive Loan in respect of  which its bid has been accepted.    (f) Funding of Competitive Loans.  Each Lender which is to make a Competitive Loan  shall make its Competitive Loan borrowing available to the Administrative Agent for the account of  the Borrower at the office of the Administrative Agent specified in Section 10.2, or at such other  office as the Administrative Agent may designate in writing, by 2:00 P.M. on the date specified in  the Competitive Bid Request in funds immediately available to the Administrative Agent.  Such  borrowing will then be made available to the Borrower by crediting the account of the Borrower on  the books of such office with the aggregate of the amount made available to the Administrative  Agent by the applicable Competitive Loan Lenders and in like funds as received by the  Administrative Agent.    (g) Maturity of Competitive Loans.  Each Competitive Loan shall mature and be due  and payable in full on the last day of the Interest Period applicable thereto, unless accelerated sooner  pursuant to Section 7.2.  Unless the Borrower shall give notice to the Administrative Agent  otherwise, the Borrower shall be deemed to have requested a Revolving Loan borrowing in the  amount of the maturing Competitive Loan, the proceeds of which will be used to repay such  Competitive Loan.    (h) Interest on Competitive Loans.  Subject to the provisions of Section 2.6,  Competitive Loans shall bear interest in each case at the Competitive Bid Rate applicable thereto.   Interest on Competitive Loans shall be payable in arrears on each Interest Payment Date.    (i) Competitive Loan Notes.  The Competitive Loans made by each Lender shall be  further evidenced by such Lender’s Revolving Note, if a Revolving Note was requested by such  Lender.    (j) No Additional Rights.  Nothing in this Section 2.2 shall be construed as a right of  first offer in favor of any Lender or otherwise limit the ability of the Borrower to request and  accept credit facilities from any Person (including any Lender) so long as no Default has occurred  and is continuing at the time of, or would otherwise arise as a result of, the Borrower executing,  delivering or performing under such credit facilities.    2.3 Swingline Loan Subfacility.    (a) Swingline Commitment.  During the Commitment Period, subject to the terms  and conditions hereof, the Swingline Lender, in its individual capacity, agrees to make certain  revolving credit loans in Dollars and in Foreign Currencies to the Borrower (each a “Swingline  Loan” and, collectively, the “Swingline Loans”) for the purposes hereinafter set forth; provided,  however, (i) the aggregate Dollar Amount of Swingline Loans (determined as of the most recent  Determination Date) outstanding at any time shall not exceed TWENTY-FIVE MILLION  





 






  40  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  DOLLARS ($25,000,000) (the “Swingline Committed Amount”), and (ii) the sum of the  aggregate Dollar Amount (determined as of the most recent Determination Date) of outstanding  Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations plus  outstanding Competitive Loans shall not exceed the Aggregate Revolving Committed Amount.   Swingline Loans hereunder may be repaid and reborrowed in accordance with the provisions  hereof.  Notwithstanding anything to the contrary contained herein, the Swingline Lender shall  not at any time be obligated to make any Swingline Loan hereunder if any Lender is at such time  a Defaulting Lender, unless the Swingline Lender has entered into arrangements satisfactory to  the Swingline Lender with the Borrower or such Lender to eliminate the Swingline Lender’s risk  with respect to such Lender’s obligations in respect of its Swingline Commitment.    (b) Swingline Loan Borrowings.    (i) Notice of Borrowing and Disbursement.  Upon receiving a Notice of  Borrowing from the Borrower (A) not later than 12:00 noon on any Business Day  requesting that a Swingline Loan be made in Dollars, the Swingline Lender will make a  Swingline Loan which is denominated in Dollars available to the Borrower on the same  Business Day and (B) not later than 10:00 A.M. (London, England time) two RFR  Business Days prior to the date that a Swingline Loan is requested to be made in a  Foreign Currency, the Swingline Lender will make a Swingline Loan which is  denominated in the requested Foreign Currency available to such Borrower on such date.   Swingline Loan borrowings hereunder shall be made in minimum amounts of $100,000  and in integral amounts of $100,000 in excess thereof.    (ii) Repayment of Swingline Loans.  Each Swingline Loan borrowing shall  be due and payable on the Maturity Date.  The Swingline Lender may, at any time, in its  sole discretion, by written notice to the Borrower and the Administrative Agent, demand  repayment of its Swingline Loans by way of a Revolving Loan borrowing, in which case  the Borrower shall be deemed to have requested a Revolving Loan borrowing comprised  entirely of Alternate Base Rate Loans in the Dollar Amount of such Swingline Loans  (each such Revolving Loan borrowing made on account of any such deemed request  therefor as provided herein being hereinafter referred to as a “Mandatory Borrowing”);  provided, however, that, in the following circumstances, any such demand shall also be  deemed to have been given one Business Day prior to each of (A) the Maturity Date,  (B) the occurrence of a Bankruptcy Event, (C) upon acceleration of the Credit Party  Obligations hereunder, whether on account of a Bankruptcy Event or any other Event of  Default and (D) the exercise of remedies in accordance with the provisions of Section 7.2  hereof; and provided, further, that, notwithstanding the foregoing to the contrary, in the  case of Swingline Loans denominated in Foreign Currencies, the Swingline Lender shall  be entitled to demand such repayment only upon (1) the Maturity Date, (2) the  occurrence of any Event of Default, (3) acceleration of the Credit Party Obligations  hereunder and (4) the exercise of remedies in accordance with the provisions of Section  7.2 hereof.  Each Lender hereby irrevocably agrees to make such Revolving Loans  promptly upon any such request or deemed request on account of each Mandatory  Borrowing in the Dollar Amount and in the manner specified in the preceding sentence  and on the same such date notwithstanding (I) the amount of the Mandatory Borrowing  may not comply with the minimum amount for borrowings of Revolving Loans otherwise  required hereunder, (II) whether any conditions specified in Section 4.2 are then satisfied,  (III) whether a Default or an Event of Default then exists, (IV) failure of any such request  or deemed request for Revolving Loans to be made by the time otherwise required in  Section 2.1(b)(i), (V) the date of such Mandatory Borrowing, or (VI) any reduction in the  





 






  41  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Revolving Committed Amount or termination of the Revolving Commitments  immediately prior to such Mandatory Borrowing or contemporaneously therewith.  If any  Mandatory Borrowing cannot for any reason be made on the date otherwise required  above (including, without limitation, as a result of the commencement of a proceeding  under the Bankruptcy Code with respect to the Borrower), then the outstanding Swingline  Loans denominated in Foreign Currencies shall be automatically converted on such date  to Swingline Loans in Dollars in an amount equal to the Dollar Amount thereof as of  such date and each Lender hereby agrees that it shall forthwith purchase (as of the date  the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments  received from the Borrower on or after such date and prior to such purchase) from the  Swingline Lender such participations in the outstanding Swingline Loans as shall be  necessary to cause each such Lender to share in such Swingline Loans ratably based upon  its respective Revolving Commitment Percentage (determined before giving effect to any  termination of the Commitments pursuant to Section 7.2), provided that (x) all interest  payable on the Swingline Loans shall be for the account of the Swingline Lender until the  date as of which the respective participation is purchased, and (y) at the time any  purchase of participations pursuant to this sentence is actually made, the purchasing  Lender shall be required to pay to the Swingline Lender interest on the principal Dollar  Amount of such participation purchased for each day from and including the day upon  which the Mandatory Borrowing would otherwise have occurred to but excluding the  date of payment for such participation, at the rate equal to, if paid within two (2) Business  Days of the date of the Mandatory Borrowing, the Overnight Rate, and thereafter at a rate  equal to the Alternate Base Rate.    (c) Interest on Swingline Loans.  Subject to the provisions of Section 2.6, Swingline  Loans that are denominated in (i) Dollars shall bear interest at a per annum rate equal to the  Alternate Base Rate plus the Applicable Percentage for Revolving Loans that are Alternate Base  Rate Loans and (ii) Foreign Currencies shall bear interest at Daily Simple RFR plus the  Applicable Percentage for Swingline Loans that are Daily Simple RFR Loans.  Interest on  Swingline Loans shall be payable in arrears on each Interest Payment Date.     (d) Foreign Currency Loan Extension/Continuations.  The Interest Period for any  Foreign Currency Loan may be extended or continued for an additional Interest Period of one  month or three months (and successive Interest Periods of one month or three months after the  expiration of any such Interest Period).  Any such Foreign Currency Loan may be extended or  continued only if the conditions in Section 4.2 have been satisfied, shall be subject to the terms of  the definition of “Interest Period” set forth in Section 1.1 and shall be in such minimum amounts  as provided in Section 2.3(b)(i).  Each extension or continuation shall be effected by the  Borrower by giving a Notice of Extension/Conversion (or telephone notice promptly confirmed in  writing) to the Administrative Agent prior to 10:00 A.M. (London, England time) two Business  Days prior to the last day of the current Interest Period for the applicable Foreign Currency Loan,  specifying (i) the date of the proposed extension or continuation, (ii) the applicable Foreign  Currency Loan for which the Interest Period is to be so extended or continued, and (iii) the new  Interest Period with respect thereto.  Each request for extension or continuation shall be  irrevocable and shall constitute a representation and warranty by the Borrower of the matters  specified in Section 4.2.  If the Borrower fails to request an extension or continuation of any  Interest Period for a Foreign Currency Loan in accordance with this Section 2.3, or any such  extension or continuation is not permitted or required by this Section 2.3, then the Interest Period  for such Foreign Currency Loan shall be automatically continued as a one month Interest Period  at the end of the Interest Period then applicable thereto.      





 






  42  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (e) Swingline Note.  The Swingline Loans shall be evidenced by a duly executed  promissory note of the Borrower to the Swingline Lender in the original amount of the Swingline  Committed Amount and substantially in the form of Exhibit 2.3(e).    (f) Cash Collateral.  At any point in time in which there is a Defaulting Lender, the  Swingline Lender may, to the extent permitted under the terms of Section 2.22, require the  Borrower to cash collateralize the outstanding Swingline Loans in accordance with Section 2.22.    2.4 Letter of Credit Subfacility.    (a) Issuance.  Subject to the terms and conditions hereof and of the LOC Documents,  if any, and any other terms and conditions which the applicable Issuing Lender may reasonably  require, during the Commitment Period the Issuing Lenders shall issue, and the Lenders shall  participate in, Letters of Credit for the account of the Borrower from time to time upon request in  a form reasonably acceptable to the applicable Issuing Lender; provided, however, that (i) the  aggregate amount of LOC Obligations shall not at any time exceed FORTY MILLION  DOLLARS ($40,000,000) (the “LOC Committed Amount”), (ii) the sum of outstanding  Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations plus  outstanding Competitive Loans shall not at any time exceed the Aggregate Revolving Committed  Amount, (iii) all Letters of Credit shall be denominated in U.S. Dollars and (iv) Letters of Credit  shall be issued for lawful corporate purposes and may be issued as standby letters of credit,  including in connection with workers’ compensation and other insurance programs, commercial  letters of credit and trade letters of credit.  Except as otherwise expressly agreed upon by all the  Lenders, no Letter of Credit shall have an original expiry date more than twelve (12) months from  the date of issuance; provided, however, so long as no Default or Event of Default has occurred  and is continuing and subject to the other terms and conditions to the issuance of Letters of Credit  hereunder, the expiry dates of Letters of Credit may be extended annually or periodically from  time to time on the request of the Borrower or by operation of the terms of the applicable Letter  of Credit to a date not more than twelve (12) months from the date of extension (each, an “Auto- Extension Letter of Credit”); provided, further, that no Letter of Credit, as originally issued or as  extended, shall have an expiry date extending beyond the date which is three (3) Business Days  prior to the Maturity Date.  Each Letter of Credit shall comply with the related LOC Documents.   The issuance and expiry date of each Letter of Credit shall be a Business Day.  Any Letters of  Credit issued hereunder shall be in a minimum original face amount of $50,000 or such lesser  amount as the applicable Issuing Lender may agree.  Wells Fargo and/or Bank of America, N.A.  shall be the Issuing Lender on all Letters of Credit issued on or after the Closing Date.  The  Issuing Lenders shall be under no obligation to issue any Letter of Credit if (a) any Lender is at  such time a Defaulting Lender, unless the such Issuing Lender has entered into arrangements  satisfactory to such Issuing Lender with the Borrower or such Lender to eliminate such Issuing  Lender’s risk with respect to such Lender’s LOC Obligations, (b) the issuance of such Letter of  Credit would result in the aggregate LOC Obligations relating to Letters of Credit issued by such  Issuing Lender exceeding such Issuing Lender’s Issuing Lender Sublimit, (c) any order, judgment  or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or  restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing  Lender or any request or directive (whether or not having the force of law) from any  Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or written  request that the Issuing Lender refrain from, the issuance of letters of credit generally or the  Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of  Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not  otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the  Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing  





 






  43  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Date and which the Issuing Lender in good faith deems material to it, (d) the issuance of the  Letter of Credit would violate one or more written policies of the Issuing Lender applicable to  letters of credit generally or (e) the beneficiary of such Letter of Credit is a Sanctioned Person.    To the extent any Borrower requests an Auto-Extension Letter of Credit in any applicable Letter  of Credit Application, such Auto-Extension Letter of Credit must permit the Issuing Lender to  prevent any such extension at least once in each twelve-month period (commencing with the date  of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than  a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at  the time such Letter of Credit is issued.  Unless otherwise directed by the Issuing Lender, the  Borrower shall not be required to make a specific request to the Issuing Lender 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 Issuing Lender to permit the extension of  such Letter of Credit at any time to an expiry date not later than the Letter of Credit expiration  date; provided, however, that the Issuing Lender shall not permit any such extension if (A) the  Issuing Lender has determined that it would not be permitted, or would have no obligation, at  such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof  (by reason of the provisions of Section 2.4(a) or otherwise), or (B) it has received notice (which  may be by telephone or in writing) on or before the day that is seven Business Days before the  Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have  elected not to permit such extension or (2) from the Administrative Agent, any Lender or the  Borrower that one or more of the applicable conditions specified in Section 4.2 is not then  satisfied, and in each such case directing the Issuing Lender not to permit such extension.    (b) Notice and Reports.  The request for the issuance of a Letter of Credit shall be  submitted to the applicable Issuing Lender at least three (3) Business Days prior to the requested  date of issuance.  The applicable Issuing Lender will promptly upon request provide to the  Administrative Agent for dissemination to the Lenders a detailed report specifying the Letters of  Credit which are then issued and outstanding and any activity with respect thereto which may  have occurred since the date of any prior report, and including therein, among other things, the  account party, the beneficiary, the face amount, expiry date as well as any payments or  expirations which may have occurred.  The applicable Issuing Lender will further provide to the  Administrative Agent promptly upon request copies of the Letters of Credit.  The applicable  Issuing Lender will provide to the Administrative Agent promptly upon request a summary report  of the nature and extent of LOC Obligations then outstanding.    (c) Participations.  Each Lender upon issuance of a Letter of Credit shall be deemed  to have purchased without recourse a risk participation from the applicable Issuing Lender in such  Letter of Credit and the obligations arising thereunder and any collateral relating thereto, if any,  in each case in an amount equal to its LOC Commitment Percentage of the obligations under such  Letter of Credit and shall absolutely, unconditionally and irrevocably assume, as primary obligor  and not as surety, and be obligated to pay to the applicable Issuing Lender therefor and discharge  when due, its LOC Commitment Percentage of the obligations arising under such Letter of Credit.   Without limiting the scope and nature of each Lender’s participation in any Letter of Credit, to  the extent that the applicable Issuing Lender has not been reimbursed as required hereunder or  under any LOC Document, each such Lender shall pay to such Issuing Lender its LOC  Commitment Percentage of such unreimbursed drawing in same day funds on the day of  notification by such Issuing Lender of an unreimbursed drawing pursuant to the provisions of  subsection (d) hereof.  The obligation of each Lender to so reimburse the applicable Issuing  Lender shall be absolute and unconditional and shall not be affected by the occurrence of a  Default, an Event of Default or any other occurrence or event.  Any such reimbursement shall not  





 






  44  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  relieve or otherwise impair the obligation of the Borrower to reimburse the applicable Issuing  Lender under any Letter of Credit, together with interest as hereinafter provided.    (d) Reimbursement.  Upon any drawing under any Letter of Credit, the applicable  Issuing Lender will promptly notify the Borrower and the Administrative Agent.  The Borrower  shall reimburse the applicable Issuing Lender (with the proceeds of a Revolving Loan obtained  hereunder or otherwise) in same day funds as provided herein or in the LOC Documents on the  Business Day next succeeding the day such notice is received by the Borrower from the  applicable Issuing Lender (the “LC Due Date”).  The unreimbursed amount of each drawing shall  bear interest at a per annum rate equal to the Alternate Base Rate plus the Applicable Percentage;  provided, however, such rate shall be increased by two percent (2%) during each day that such  reimbursement obligation is past due.  Unless the Borrower shall notify the applicable Issuing  Lender and the Administrative Agent by the LC Due Date of its intent to otherwise reimburse  such Issuing Lender, the Borrower shall be deemed to have requested a Revolving Loan in the  amount of the drawing as provided in subsection (e) hereof, the proceeds of which will be used to  satisfy the reimbursement obligations.  Such reimbursement obligations shall be deemed to be  paid upon the making of any such Revolving Loan.  The Borrower’s reimbursement obligations  hereunder shall be absolute and unconditional under all circumstances irrespective of any rights  of set-off, counterclaim or defense to payment the Borrower may claim or have against the  applicable Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the Letter of  Credit drawn upon or any other Person, including without limitation any defense based on any  failure of the Borrower to receive consideration or the legality, validity, regularity or  unenforceability of the Letter of Credit.  The Issuing Lenders will promptly notify the Lenders of  the amount of any unreimbursed drawing and each Lender shall promptly pay to the  Administrative Agent for the account of such Issuing Lender in Dollars and in immediately  available funds, the amount of such Lender’s LOC Commitment Percentage of such  unreimbursed drawing.  Such payment shall be made on the day such notice is received by such  Lender from the applicable Issuing Lender if such notice is received at or before 2:00 P.M.,  otherwise such payment shall be made at or before 12:00 noon on the Business Day next  succeeding the day such notice is received.  If such Lender does not pay such amount to the  applicable Issuing Lender in full upon such request, such Lender shall, on demand, pay to the  Administrative Agent for the account of the applicable Issuing Lender interest on the unpaid  amount during the period from the date of such drawing until such Lender pays such amount to  such Issuing Lender in full at a rate per annum equal to, if paid within two (2) Business Days of  the date of drawing, the Overnight Rate and thereafter at a rate equal to the Alternate Base Rate.   Each Lender’s obligation to make such payment to the applicable Issuing Lender, and the right of  such Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected  by any circumstance whatsoever and without regard to the termination of this Agreement or the  Commitments hereunder, the existence of a Default or Event of Default or the acceleration of the  Credit Party Obligations hereunder and shall be made without any offset, abatement, withholding  or reduction whatsoever.    (e) Repayment with Loans.  On any day on which the Borrower shall have  requested, or been deemed to have requested a Revolving Loan to reimburse a drawing under a  Letter of Credit, the Administrative Agent shall give notice to the Lenders that a Revolving Loan  has been requested or deemed requested in connection with a drawing under a Letter of Credit, in  which case a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans (each  such borrowing, a “Mandatory Borrowing”) shall be immediately made (without giving effect to  any termination of the Commitments pursuant to Section 7.2) pro rata based on each Lender’s  respective Revolving Commitment Percentage (determined before giving effect to any  termination of the Commitments pursuant to Section 7.2) and the proceeds thereof shall be paid  





 






  45  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  directly to the applicable Issuing Lender for application to the respective LOC Obligations.  Each  Lender hereby irrevocably agrees to make such Revolving Loans immediately upon any such  request or deemed request on account of each Mandatory Borrowing in the amount and in the  manner specified in the preceding sentence and on the same such date notwithstanding (i) the  amount of Mandatory Borrowing may not comply with the minimum amount for borrowings of  Loans otherwise required hereunder, (ii) whether any conditions specified in Section 4.2 are then  satisfied, (iii) whether a Default or an Event of Default then exists, (iv) failure for any such  request or deemed request for a Revolving Loan to be made by the time otherwise required in  Section 2.1(b)(i), (v) the date of such Mandatory Borrowing, or (vi) any reduction in the  Aggregate Revolving Committed Amount after any such Letter of Credit may have been drawn  upon.  If any Mandatory Borrowing cannot for any reason be made on the date otherwise required  above (including, without limitation, as a result of the commencement of a proceeding under the  Bankruptcy Code), then each such Lender hereby agrees that it shall forthwith fund (as of the date  the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments  received from the Borrower on or after such date and prior to such purchase) its Participation  Interests in the LOC Obligations; provided, further, that if any Lender shall fail to fund its  Participation Interest on the day the Mandatory Borrowing would otherwise have occurred, then  the amount of such Lender’s unfunded Participation Interest therein shall bear interest payable by  such Lender to the applicable Issuing Lender upon demand, at the rate equal to, if paid within two  (2) Business Days of such date, the Overnight Rate, and thereafter at a rate equal to the Alternate  Base Rate.    (f) Modification, Extension.  The issuance of any supplement, modification,  amendment, renewal, or extension to any Letter of Credit shall, for purposes hereof, be treated in  all respects the same as the issuance of a new Letter of Credit hereunder.    (g) Letter of Credit Governing Law.  Unless otherwise expressly agreed by the  applicable Issuing Lender and the Borrower when a Letter of Credit is issued, (i) the rules of the  “International Standby Practices 1998” published by the Institute of International Banking Law &  Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to  each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for  Documentary Credits, as most recently published by the International Chamber of Commerce at  the time of issuance, shall apply to each commercial Letter of Credit.    (h) Cash Collateral.  At any point in time in which there is a Defaulting Lender, the  Issuing Lenders, to the extent permitted under the terms of Section 2.22, may require the  Borrower to cash collateralize the LOC Obligations in accordance with Section 2.22.    (j) Conflict with Issuing Lender Documents.  In the event of any conflict between  the terms hereof and the terms of any Issuing Lender document, the terms hereof shall control.    2.5 Additional Loans.    (a) Subject to the terms and conditions set forth herein, so long as no Default or  Event of Default shall have occurred and be continuing, the Borrower shall have the right from  time to time during the period from the Closing Date until the date one Business Day prior to the  Maturity Date, to incur additional Indebtedness under this Agreement in the form of (i) one or  more increases to the Aggregate Revolving Committed Amount (the “Additional Revolving  Loans”) and/or (ii) a term loan facility (the “Additional Term Loan”; together with the Additional  Revolving Loans, the “Additional Loans”), in an aggregate amount of up to $150,000,000.  The  following terms and conditions shall apply:  (A) the aggregate amount of all Additional Loans  





 






  46  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  shall not at any one time exceed $150,000,000, (B) the terms and conditions of any Additional  Term Loans shall be reasonably satisfactory to the Administrative Agent and the Additional Loan  Lenders (as such term is defined below), (C) the loans made under any Additional Loan facilities  shall constitute Credit Party Obligations, (D) any Additional Revolving Loans shall have the  same terms (including interest rate) as the existing Revolving Loans, (E) any Additional Term  Loan shall have a maturity date no sooner than the Maturity Date of the Revolving Loans, (F) any  Additional Loans shall be entitled to the same voting rights as the existing Loans and shall be  entitled to receive proceeds of prepayments on the same basis as comparable Loans, (G) any  Additional Loans shall be obtained from existing Lenders or from other banks, financial  institutions or investment funds, in each case in accordance with the terms set forth below (such  Persons being referred to herein as the “Additional Loan Lenders”), (H) each Additional Loan  shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in  excess thereof, (I) the proceeds of any Additional Loans will be used to finance capital  expenditures and working capital and other general corporate purposes, including Permitted  Investments, (J) the Borrower shall execute such promissory notes as are necessary and requested  by the Additional Loan Lenders to reflect the Additional Loans, (K) the conditions to Extensions  of Credit in Section 4.2 shall have been satisfied and (L) the Administrative Agent shall have  received from the Borrower (1) updated financial projections and an officer’s certificate, in each  case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating  that, after giving effect to any such Additional Loan, the Borrower will be in compliance with the  financial covenants set forth in Section 5.9 and (2) such other documentation as the  Administrative Agent may reasonably request, including, without limitation, corporate  authorization documentation and legal opinions.  Participation in any Additional Loans shall be  offered first to each of the existing Lenders on a pro rata basis, but none of such Lenders shall  have any obligation to provide all or any portion of any such Additional Loans.  If the amount of  any Additional Loans requested by the Borrower shall exceed the commitments which the  existing Lenders are willing to provide with respect to such Additional Loans, then the Borrower  may invite other banks, financial institutions and investment funds reasonably acceptable to the  Administrative Agent to join this Agreement as Lenders hereunder for the portion of such  Additional Loans not taken by existing Lenders; provided that such other banks, financial  institutions and investment funds shall enter into such joinder agreements to give effect thereto as  the Administrative Agent and the Borrower may reasonably request.  In the case of Additional  Revolving Loans, the existing Lenders shall make such assignments (which assignments shall not  be subject to the requirements set forth in Section 10.6(c)) of the outstanding Revolving Loans  and Participation Interests to the Additional Loan Lenders providing any Additional Revolving  Loans so that, after giving effect to such assignments, each Lender holding a Revolving  Commitment (including such Additional Loan Lenders) will hold Revolving Loans and  Participation Interests equal to its Commitment Percentage of all outstanding Revolving Loans  and LOC Obligations.  Notwithstanding any provision of this Agreement to the contrary, the  Administrative Agent is authorized (with the consent of the Borrower and the Additional Loan  Lenders), to enter into, on behalf of all Lenders, any amendment, modification or supplement to  this Agreement or any other Credit Document as may be necessary to incorporate the terms of  any Additional Loans.      2.6 Default Rate.    Upon the occurrence and during the continuance of a (a) Bankruptcy Event or a Payment Event of  Default, the principal of and, to the extent permitted by law, interest on the Loans and any other amounts  owing hereunder or under the other Credit Documents shall automatically bear interest at a rate per  annum which is equal to the Default Rate and (b) any other Event of Default hereunder, at the option of  the Required Lenders, the principal of and, to the extent permitted by law, interest on the Loans and any  





 






  47  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  other amounts owing hereunder or under the other Credit Documents shall automatically bear interest, at a  per annum rate which is equal to the Default Rate, in each case from the date of such Event of Default  until such Event of Default is waived in accordance with Section 10.1.  Any default interest owing under  this Section shall be due and payable on the earlier to occur of (x) demand by the Administrative Agent  (which demand the Administrative Agent shall make if directed by the Required Lenders) and (y) the  Maturity Date.      2.7 Extension and Conversion.    The Borrower shall have the option, on any Business Day, to extend existing Loans into a  subsequent permissible Interest Period or to convert Loans into Loans of another Type; provided,  however, that (a) except as expressly provided otherwise in this Agreement, SOFR Loans may be  converted into Alternate Base Rate Loans only on the last day of the Interest Period applicable thereto,  (b) SOFR Loans may be extended, and Alternate Base Rate Loans may be converted into SOFR Loans,  only if the conditions in Section 4.2 have been satisfied and (c) Loans extended as, or converted into,  SOFR Loans shall be subject to the terms of the definition of “Interest Period” set forth in Section 1.1 and  shall be in such minimum amounts as provided in Section 2.1(b)(ii).  Any request for extension or  conversion of a SOFR Loan which shall fail to specify an Interest Period shall be deemed to be a request  for an Interest Period of one month.  Each such extension or conversion shall be effected by the Borrower  by giving a Notice of Extension/Conversion (or telephone notice promptly confirmed in writing through  delivery of a Notice of Extension/Conversion) to the Administrative Agent prior to 11:00 A.M. on the  Business Day of, in the case of the conversion of a SOFR Loan into an Alternate Base Rate Loan, and on  the third RFR Business Day prior to, in the case of the extension of a SOFR Loan as, or conversion of an  Alternate Base Rate Loan into, a SOFR Loan, the date of the proposed extension or conversion,  specifying (i) the date of the proposed extension or conversion, (ii) the Loans to be so extended or  converted, (iii) the Types of Loans into which such Loans are to be converted and (iv) if applicable, the  applicable Interest Periods with respect thereto.  Each request for extension or conversion shall be  irrevocable and shall constitute a representation and warranty by the Borrower of the matters specified in  Section 4.2.  If the Borrower fails to request extension or conversion of any SOFR Loan in accordance  with this Section, or any such conversion or extension is not permitted or required by this Section, then  such SOFR Loan shall be converted to an Alternate Base Rate Loan at the end of the Interest Period  applicable thereto.  The Administrative Agent shall give each Lender notice as promptly as practicable of  any such proposed extension or conversion affecting any Loan.    2.8 Prepayments.    (a) Voluntary Repayments.  Revolving Loans, Swingline Loans and, with the  consent of the applicable Competitive Loan Lender or Lenders, Competitive Loans, may be  repaid in whole or in part without premium or penalty; provided that (i) RFR Loans may be  repaid only upon three RFR Business Days’ prior written notice to the Administrative Agent and  Alternate Base Rate Loans may be repaid only upon at least one (1) Business Day’s prior written  notice to the Administrative Agent, (ii) repayments of RFR Loans must be accompanied by  payment of any amounts owing under Section 2.17, and (iii) partial repayments of RFR Loans  shall be in minimum principal amount of $2,000,000, and in integral multiples of $1,000,000 in  excess thereof (or, if less, the remaining amount thereof) and partial repayments of Alternate Base  Rate Loans shall be in minimum principal amount of $1,000,000, and in integral multiples of  $500,000 in excess thereof (or, if less, the remaining amount thereof).     (b) Mandatory Prepayments.  If at any time, the aggregate principal Dollar Amount  (determined, with respect to Foreign Currency Loans, as of the most recent Determination Date)  of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC  





 






  48  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Obligations plus outstanding Competitive Loans shall exceed the Aggregate Revolving  Committed Amount, the Borrower shall immediately make payment on the Loans in an amount  sufficient to eliminate the deficiency; provided, however, that, notwithstanding the foregoing to  the contrary, if the amount of such excess has been incurred as a result of exchange rate  fluctuations in the Dollar Amount of the Swingline Loans denominated in Foreign Currencies and  such excess is not greater than ten percent (10%) of the Swingline Committed Amount, then the  Borrower shall not be required to repay such excess until thirty (30) days after the incurrence of  such excess, and then only to the extent, if any, of such excess on the date such payment is due.    (c) Application.  Unless otherwise specified by the Borrower, voluntary repayments  and mandatory prepayments made hereunder shall be applied first to Alternate Base Rate Loans,  then to Daily Simple RFR Loans, then to SOFR Loans in direct order of Interest Period  maturities, second to Competitive Loans in direct order of Interest Period maturities and third  (after all Loans have been repaid) to a cash collateral account in respect of LOC Obligations.   Amounts repaid on the Swingline Loan and the Revolving Loans may be reborrowed in  accordance with the provisions hereof.    (d) Bank Product Obligations Unaffected.  Any repayment or prepayment made  pursuant to this Section 2.8 shall not affect the Borrower’s obligation to continue to make  payments under any Bank Product with a Bank Product Provider, which shall remain in full force  and effect notwithstanding such repayment or prepayment, subject to the terms of such Bank  Product.    2.9 Termination and Reduction of Commitments    (a) Voluntary Reductions.  The Commitments may be terminated or permanently  reduced by the Borrower in whole or in part upon one (1) Business Day’s prior written notice to  the Administrative Agent; provided that (i) after giving effect to any voluntary reduction, the  aggregate principal amount of Loans plus LOC Obligations outstanding shall not exceed the  Aggregate Revolving Committed Amount, as reduced, and (ii) partial reductions shall be in  minimum principal amounts of $3,000,000, and in integral multiples of $1,000,000 in excess  thereof; provided further, that no such reduction or termination shall be permitted if after giving  effect thereto, and to any prepayments of the Revolving Loans made on the effective date thereof,  the sum of the then outstanding aggregate principal amount of the Revolving Loans plus  outstanding Swingline Loans plus outstanding LOC Obligations plus outstanding Competitive  Loans would exceed the Aggregate Revolving Committed Amount; and provided further, that  with respect to the portion of the Commitments comprising Additional Revolving Loans, only  one such reduction shall be permitted to be made in any calendar year.  Notwithstanding the  foregoing to the contrary, the portion of the Commitments comprising Additional Revolving  Loans, if reduced in whole or in part pursuant to this Section 2.9(a), may be reinstated from time  to time in the form of new Additional Revolving Loans to the extent then permitted to be made  under Section 2.5 hereof.    (b) Mandatory Reduction.  The Revolving Commitment, the LOC Commitment and  the Swingline Commitment shall automatically terminate on the Maturity Date.    2.10 Fees.    (a) Commitment Fee.  Subject to Section 2.23, in consideration of the Revolving  Commitments, the Borrower agrees to pay to the Administrative Agent, for the ratable benefit of  the Revolving Lenders, a commitment fee (the “Commitment Fee”) in an amount equal to the  





 






  49  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Applicable Percentage per annum on the average daily unused amount of the Revolving  Committed Amount.  The Commitment Fee shall be calculated quarterly in arrears.  For purposes  of computation of the Commitment Fee, LOC Obligations shall be considered usage of the  Revolving Committed Amount but Swingline Loans shall not be considered usage of the  Revolving Committed Amount.  The Commitment Fee shall be payable quarterly in arrears on the  15th day following the last day of each calendar quarter.     (b) Letter of Credit Fees.  Subject to Section 2.23, in consideration of the LOC  Commitments, the Borrower agrees to pay to the Administrative Agent, for the ratable benefit of  the Revolving Lenders, a fee (the “Letter of Credit Fee”) equal to the Applicable Percentage for  Revolving Loans that are SOFR Loans per annum on the average daily maximum amount  available to be drawn under each Letter of Credit from the date of issuance to the date of  expiration.  The Letter of Credit Fee shall be payable quarterly in arrears on the 15th day  following the last day of each calendar quarter.      (c) Issuing Lender Fees.  In addition to the Letter of Credit Fees payable pursuant to  subsection (ii) above, the Borrower shall pay to the applicable Issuing Lender for its own account  without sharing by the other Lenders (i) an Issuance Fee, as defined in the Joint Fee Letter, such  fee to be paid quarterly in arrears on the 15th day following the last day of each calendar quarter  for the prior calendar quarter, and (ii) the reasonable and customary charges from time to time of  the applicable Issuing Lender with respect to the amendment, transfer, administration,  cancellation and conversion of, and drawings under, such Letters of Credit (collectively, the  “Issuing Lender Fees”).      (d) Administrative Agent’s Fee.  The Borrower agrees to pay to the Administrative  Agent the annual administrative agent fee as described in the Administrative Agent Fee Letter.    2.11 Computation of Interest and Fees.    (a) Interest payable hereunder with respect to Alternate Base Rate Loans based on  the Prime Rate shall be calculated on the basis of a year of 365 days (or 366 days, as applicable)  for the actual days elapsed.  All other fees, interest and all other amounts payable hereunder shall  be calculated on the basis of a 360 day year for the actual days elapsed.  The Administrative  Agent shall as soon as practicable notify the Borrower and the Lenders of each determination of  Adjusted Term SOFR on the RFR Business Day of the determination thereof.  Any change in the  interest rate on a Loan resulting from a change in the Alternate Base Rate shall become effective  as of the opening of business on the day on which such change in the Alternate Base Rate shall  become effective.  The Administrative Agent shall as soon as practicable notify the Borrower and  the Lenders of the effective date and the amount of each such change.    (b) Each determination of an interest rate by the Administrative Agent pursuant to  any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders  in the absence of manifest error.  The Administrative Agent shall, at the request of the Borrower,  deliver to the Borrower a statement showing the computations used by the Administrative Agent  in determining any interest rate.    (c) In connection with the use or administration of Term SOFR, the Administrative  Agent will have the right to make Conforming Changes from time to time and, notwithstanding  anything to the contrary herein or in any other 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.  The Administrative Agent will  





 






  50  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in  connection with the use or administration of Term SOFR.    2.12 Pro Rata Treatment and Payments.    (a) Each borrowing of Loans and any reduction of the Commitments shall be made  pro rata according to the respective Commitment Percentages of the Lenders.  Each payment  under this Agreement or any Credit Document shall be applied (i) first, to any Fees then due and  owing, (ii) second, to interest then due and owing in respect of the Loans to the Borrower and  (iii) third, to principal then due and owing hereunder and under the Loans to the Borrower.  Each  payment on account of the Commitment Fees or the Letter of Credit Fees shall be made pro rata  in accordance with the respective amounts due and owing.  Each payment (other than voluntary  repayments and mandatory prepayments) by the Borrower on account of principal of and interest  on the Loans shall be made pro rata according to the respective amounts due and owing hereunder  in the currency in which such amount is denominated and in such funds as are customary at the  place and time of payment for the settlement of international payments in such currency.  Without  limiting the terms of the preceding sentence, accrued interest on any Foreign Currency Loans  shall be payable in the same Foreign Currency as such Loan.  Each voluntary repayment and  mandatory prepayment on account of principal of the Loans shall be applied in accordance with  Section 2.8.  With respect to Competitive Loans, if the Borrower fails to specify the particular  Competitive Loan or Loans as to which any payment or other amount should be applied and it is not  otherwise clear as to the particular Competitive Loan or Loans to which such payment or other  amounts relate, or any such payment or other amount is to be applied to Competitive Loans without  regard to any such direction by the Borrower, then each payment or prepayment of principal on  Competitive Loans and each payment of interest or other amount on or in respect of Competitive  Loans, shall be allocated pro rata among the relevant Competitive Loan Lenders in accordance with  the then outstanding amounts of their respective Competitive Loans.  All payments (including  prepayments) to be made by the Borrower on account of principal, interest and fees shall be made  without defense, set-off or counterclaim (except as provided in Section 2.18(b)) and shall be  made to the Administrative Agent for the account of the Lenders at the Administrative Agent’s  office specified in Section 10.2 in immediately available funds (or at such other location mutually  agreed to by the Administrative Agent and the Borrower with respect to Foreign Currency Loans)  and (A) in the case of Loans or other amounts denominated in Dollars, shall be made in Dollars  not later than 1:00 P.M. on the date when due and (B) in the case of Loans or other amounts  denominated in a Foreign Currency, shall be made in such Foreign Currency not later than the  Applicable Time specified by the Administrative Agent on the date when due.  The  Administrative Agent shall distribute such payments to the Lenders entitled thereto promptly  upon receipt in like funds as received.  If any payment hereunder (other than payments on the  SOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall  be extended to the next succeeding Business Day, and, with respect to payments of principal,  interest thereon shall be payable at the then applicable rate during such extension.  If any payment  on a SOFR Loan becomes due and payable on a day other than a Business Day, the maturity  thereof shall be extended to the next succeeding Business Day unless the result of such extension  would be to extend such payment into another calendar month, in which event such payment shall  be made on the immediately preceding Business Day.    (b) Allocation of Payments After Exercise of Remedies.  Notwithstanding any other  provision of this Agreement to the contrary, after the exercise of remedies by the Administrative  Agent or the Required Lenders pursuant to Section 7.2, all amounts collected or received by the  Administrative Agent or any Lender on account of the Credit Party Obligations or any other  





 






  51  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  amounts outstanding under any of the Credit Documents shall be paid over or delivered as  follows:      FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including  without limitation reasonable attorneys’ fees) of the Administrative Agent in connection with  enforcing the rights of the Lenders under the Credit Documents;      SECOND, to payment of any fees owed to the Administrative Agent and the Issuing  Lenders;      THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including  without limitation, reasonable attorneys’ fees) of each of the Lenders in connection with  enforcing its rights under the Credit Documents or otherwise with respect to the Credit Party  Obligations owing to such Lender;      FOURTH, to the payment of all of the Credit Party Obligations consisting of accrued fees  and interest (including, without limitation, accrued fees and interest arising under any Bank Product  with a Bank Product Provider);        FIFTH, to the payment of the outstanding principal amount of the Credit Party  Obligations (including, without limitation, the payment or cash collateralization of the  outstanding LOC Obligations, and including with respect to any Bank Product with a Bank  Product Provider, any breakage, termination or other payments due under such Bank Product with  a Bank Product Provider and any interest accrued thereon);       SIXTH, to all other Credit Party Obligations and other obligations which shall have  become due and payable under the Credit Documents or otherwise and not repaid pursuant to  clauses “FIRST” through “FIFTH” above; and      SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to  receive such surplus.    In carrying out the foregoing, (a) amounts received shall be applied in the numerical order  provided until exhausted prior to application to the next succeeding category; (b) each of the  Lenders and any Bank Product Provider shall receive an amount equal to its pro rata share (based  on the proportion that the then outstanding Loans and LOC Obligations held by such Lender or  the outstanding obligations payable to such Bank Product Provider bears to the aggregate then  outstanding Loans and LOC Obligations and obligations payable under all Bank Products) of  amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and  “SIXTH” above; and (c) to the extent that any amounts available for distribution pursuant to  clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding Letters of  Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and  applied (i) first, to reimburse the Issuing Lenders from time to time for any drawings under such  Letters of Credit and (ii) then, following the expiration of all Letters of Credit, to all other  obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner  provided in this Section.  Notwithstanding the foregoing terms of this Section, only proceeds and  payments under the Guaranty (as opposed to ordinary course principal, interest and fee payments  hereunder) shall be applied to obligations under any Bank Product.  The Administrative Agent  shall have no obligation to calculate the amount to be distributed with respect to any Bank  Product Debt, but may rely upon written notice of the amount (setting forth a reasonably detailed  calculation) from the applicable Bank Product Provider.  In the absence of such notice, the  





 






  52  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Administrative Agent may assume the amount to be distributed is the Bank Product Amount last  reported to the Administrative Agent.     2.13 Non-Receipt of Funds by the Administrative Agent.    (a) Unless the Administrative Agent shall have been notified in writing by a Lender  prior to the date a Loan is to be made by such Lender (which notice shall be effective upon  receipt) that such Lender does not intend to make the proceeds of such Loan available to the  Administrative Agent, the Administrative Agent may assume that such Lender has made such  proceeds available to the Administrative Agent on such date, and the Administrative Agent may  in reliance upon such assumption (but shall not be required to) make available to the Borrower a  corresponding amount.  If such corresponding amount is not in fact made available to the  Administrative Agent, the Administrative Agent shall be able to recover such corresponding  amount from such Lender.  If such Lender does not pay such corresponding amount forthwith  upon the Administrative Agent’s demand therefor, the Administrative Agent will promptly notify  the Borrower, and the Borrower shall immediately pay such corresponding amount to the  Administrative Agent.  The Administrative Agent shall also be entitled to recover from the  Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of  each day from the date such corresponding amount was made available by the Administrative  Agent to the Borrower to the date such corresponding amount is recovered by the Administrative  Agent at a per annum rate equal to (i) from the Borrower at the applicable rate for the applicable  borrowing pursuant to the Notice of Borrowing and (ii) from a Lender at the Overnight Rate.    (b) Unless the Administrative Agent shall have been notified in writing by the  Borrower, prior to the date on which any payment is due from it hereunder (which notice shall be  effective upon receipt) that the Borrower does not intend to make such payment, the  Administrative Agent may assume that such Borrower has made such payment when due, and the  Administrative Agent may in reliance upon such assumption (but shall not be required to) make  available to each Lender on such payment date an amount equal to the portion of such assumed  payment to which such Lender is entitled hereunder, and if the Borrower has not in fact made  such payment to the Administrative Agent, such Lender shall, on demand, repay to the  Administrative Agent the amount made available to such Lender.  If such amount is repaid to the  Administrative Agent on a date after the date such amount was made available to such Lender,  such Lender shall pay to the Administrative Agent on demand interest on such amount in respect  of each day from the date such amount was made available by the Administrative Agent at a per  annum rate equal to, if repaid to the Administrative Agent within two (2) days from the date such  amount was made available by the Administrative Agent, the Overnight Rate and thereafter at a  rate equal to the Alternate Base Rate.    (c) A certificate of the Administrative Agent submitted to the Borrower or any  Lender with respect to any amount owing under this Section 2.13 shall be conclusive in the  absence of manifest error.    (d) If any Lender makes available to the Administrative Agent funds for any Loan to  be made by such Lender as provided in the foregoing provisions of this Section 2, and such funds  are not made available to the Borrower by the Administrative Agent because the conditions to the  applicable Extension of Credit set forth in Section 4 are not satisfied or waived in accordance  with the terms thereof, the Administrative Agent shall return such funds (in like funds as received  from such Lender) to such Lender, without interest.    





 






  53  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (e) The obligations of the Lenders hereunder to make Loans, to fund participations  in Letters of Credit and Swingline Loans and to make payments pursuant to Section 10.5(c) are  several and not joint.  The failure of any Lender to make any Loan, to fund any such participation  or to make any such payment under Section 10.5(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 10.5(c).    (f) 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.    2.14 Inability to Determine Interest Rate.    (a) Circumstances Affecting Rates.  Subject to clause (c) below, in connection with  any RFR Loan, a request therefor, a conversion to or a continuation thereof or otherwise, if for  any reason (i) the Administrative Agent shall determine (which determination shall be conclusive  and binding absent manifest error) that (x) if Daily Simple RFR is utilized in any calculations  hereunder or under any other Credit Document with respect to any Obligations, interest, fees,  commissions or other amounts, reasonable and adequate means do not exist for ascertaining Daily  Simple RFR pursuant to the definition thereof or (y) if Adjusted Term SOFR is utilized in any  calculations hereunder or under any other Credit Document with respect to any Obligations,  interest, fees, commissions or other amounts, reasonable and adequate means do not exist for  ascertaining Adjusted Term SOFR for the applicable Currency and the applicable Interest Period  with respect to a proposed SOFR Loan on or prior to the first day of such Interest Period, (ii) the  Administrative Agent shall determine (which determination shall be conclusive and binding  absent manifest error) that a fundamental change has occurred in the foreign exchange or  interbank markets with respect to an applicable Foreign Currency (including changes in national  or international financial, political or economic conditions or currency exchange rates or  exchange controls), (iii) [reserved], or (iv) the Required Lenders shall determine (which  determination shall be conclusive and binding absent manifest error) that (x) if Daily Simple RFR  is utilized in any calculations hereunder or under any other Credit Document with respect to any  Obligations, interest, fees, commissions or other amounts, Daily Simple RFR does not adequately  and fairly reflect the cost to such Lenders of making or maintaining such Loans or (y) if Adjusted  Term SOFR is utilized in any calculations hereunder or under any other Credit Document with  respect to any Obligations, interest, fees, commissions or other amounts, Adjusted Term SOFR  does not adequately and fairly reflect the cost to such Lenders of making or maintaining such  Loans during the applicable Interest Period and, in the case of (x) or (y), the Required Lenders  have provided notice of such determination to the Administrative Agent, then, in each case, the  Administrative Agent shall promptly give notice thereof to the Borrower.  Upon notice thereof by  the Administrative Agent to the Borrower, any obligation of the Lenders to make RFR Loans in  each such Currency, and any right of the Borrower to convert any Loan in each such Currency (if  applicable) to or continue any Loan as an RFR Loan in each such Currency, shall be suspended  (to the extent of the affected RFR Loans or, in the case of SOFR Loans, the affected Interest  Periods) until the Administrative Agent (with respect to clause (iv), at the instruction of the  Required Lenders) revokes such notice.  Upon receipt of such notice, (A) the Borrower may  revoke any pending request for a borrowing of, conversion to or continuation of RFR Loans in  each such affected Currency (to the extent of the affected RFR Loans or, in the case of SOFR  Loans, the affected Interest Periods) or, failing that, (I) in the case of any request for a borrowing  of an affected SOFR Loan, the Borrower will be deemed to have converted any such request into  a request for a borrowing of or conversion to Base Rate Loans in the amount specified therein and  





 






  54  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (II) in the case of any request for a borrowing of an affected RFR Loan in a Foreign Currency,  then such request shall be ineffective and (B)(I) any outstanding affected Loans will be deemed to  have been converted into Base Rate Loans at the end of the applicable Interest Period and (II) any  outstanding affected Loans denominated in a Foreign Currency, at the Borrower’s election, shall  either (x) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the  Dollar Equivalent of such Foreign Currency) immediately or, in the case of RFR Loans, at the  end of the applicable Interest Period or (y) be prepaid in full immediately or, in the case of RFR  Loans, at the end of the applicable Interest Period; provided that if no election is made by the  Borrower by the date that is the earlier of (x) three (3) Business Days after receipt by the  Borrower of such notice or (y) with respect to a RFR Loan the last day of the current Interest  Period, the Borrower shall be deemed to have elected clause (x) above.  Upon any such  prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid  or converted, together with any additional amounts required pursuant to Section 2.17.    (b) Laws Affecting Availability.  If, after the date hereof, the introduction of, or any  change in, any Applicable Law or any change in the interpretation or administration thereof by  any Governmental Authority, central bank or comparable agency charged with the interpretation  or administration thereof, or compliance by any of the Lenders (or any of their respective Lending  Offices) with any request or directive (whether or not having the force of law) of any such  Governmental Authority, central bank or comparable agency, shall make it unlawful or  impossible for any of the Lenders (or any of their respective Lending Offices) to honor its  obligations hereunder to make or maintain any Daily Simple RFR Loan or SOFR Loan, or to  determine or charge interest based upon any applicable Term SOFR Reference Rate, Term SOFR,  Adjusted Term SOFR, RFR or Daily Simple RFR, such Lender shall promptly give notice thereof  to the Administrative Agent and the Administrative Agent shall promptly give notice to the  Borrower and the other Lenders (an “Illegality Notice”).  Thereafter, until each affected Lender  notifies the Administrative Agent and the Administrative Agent notifies the Borrower that the  circumstances giving rise to such determination no longer exist, (i) any obligation of the Lenders  to make RFR Loans in the affected Currency or Currencies, and any right of the Borrower to  convert any Loan denominated in Dollars to a SOFR Loan or continue any Loan as an RFR Loan  in the affected Currency or Currencies shall be suspended and (ii) if necessary to avoid such  illegality, the Administrative Agent shall compute the Alternate Base Rate without reference to  clause (c) of the definition of “Alternate Base Rate”.  Upon receipt of an Illegality Notice, the  Borrower shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy  to the Administrative Agent), prepay or, if applicable, (A) convert all SOFR Loans to Alternate  Base Rate Loans or (B) convert all RFR Loans denominated in an affected Foreign Currency to  Alternate Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent  of such Foreign Currency) (in each case, if necessary to avoid such illegality, the Administrative  Agent shall compute the Alternate Base Rate without reference to clause (c) of the definition of  “Alternate Base Rate”) (1) with respect to Daily Simple RFR Loans, on the Interest Payment Date  therefor, if all affected Lenders may lawfully continue to maintain such Daily Simple RFR Loans  to such day, or immediately, if any Lender may not lawfully continue to maintain such Daily  Simple RFR Loans to such day or (2) with respect to SOFR Loans, on the last day of the Interest  Period therefor, if all affected Lenders may lawfully continue to maintain such SOFR Loans to  such day, or immediately, if any Lender may not lawfully continue to maintain such SOFR  Loans, as applicable, to such day.  Upon any such prepayment or conversion, the Borrower shall  also pay accrued interest (except with respect to any prepayment or conversion of a Daily Simple  RFR Loan) on the amount so prepaid or converted, together with any additional amounts required  pursuant to Section 2.17.    (c) Benchmark Replacement Setting.  





 






  55  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    (i) Benchmark Replacement. Notwithstanding anything to the contrary  herein or in any other Credit Document, upon the occurrence of a Benchmark Transition  Event with respect to any Benchmark, the Administrative Agent and the Borrower may  amend this Agreement to replace such Benchmark with a Benchmark Replacement.  Any  such amendment with respect to a Benchmark Transition Event will become effective at  5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such  proposed amendment to all affected Lenders and the Borrower so long as the  Administrative Agent has not received, by such time, written notice of objection to such  amendment from Lenders comprising the Required Lenders.  No replacement of a  Benchmark with a Benchmark Replacement pursuant to this Section 2.14(c)(i)(A) will  occur prior to the applicable Benchmark Transition Start Date.    (ii) Benchmark Replacement Conforming Changes. In connection with the  use, administration, adoption or implementation of a Benchmark Replacement, the  Administrative Agent will have the right to make Conforming Changes from time to time  and, notwithstanding anything to the contrary herein or in any other 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.    (iii) Notices; Standards for Decisions and Determinations. The  Administrative Agent will promptly notify the Borrower and the Lenders of (A) the  implementation of any Benchmark Replacement and (B) the effectiveness of any  Conforming Changes in connection with the use, administration, adoption or  implementation of a Benchmark Replacement.  The Administrative Agent will promptly  notify the Borrower of the removal or reinstatement of any tenor of a Benchmark  pursuant to Section 2.14(c)(iv).  Any determination, decision or election that may be  made by the Administrative Agent or, if applicable, any Lender (or group of Lenders)  pursuant to this Section 2.14(c), including any determination with respect to a tenor, rate  or adjustment or of the occurrence or non-occurrence of an event, circumstance or date  and any decision to take or refrain from taking any action or any selection, will be  conclusive and binding absent manifest error and may be made in its or their sole  discretion and without consent from any other party to this Agreement or any other Credit  Document, except, in each case, as expressly required pursuant to this Section 2.14(c).    (iv) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the  contrary herein or in any other Credit Document, at any time (including in connection  with the implementation of a Benchmark Replacement), (A) if any then-current  Benchmark is a term rate (including the Term SOFR Reference Rate or EURIBOR) and  either (1) any tenor for such Benchmark is not displayed on a screen or other information  service that publishes such rate from time to time as selected by the Administrative Agent  in its reasonable discretion or (2) the regulatory supervisor for the administrator of such  Benchmark has provided a public statement or publication of information announcing  that any tenor for such Benchmark is not or will not be representative, then the  Administrative Agent may modify the definition of “Interest Period” (or any similar or  analogous definition) for any Benchmark settings at or after such time to remove such  unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to  clause (A) above either (1) is subsequently displayed on a screen or information service  for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer,  subject to an announcement that it is not or will not be representative for a Benchmark  





 






  56  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (including a Benchmark Replacement), then the Administrative Agent may modify the  definition of “Interest Period” (or any similar or analogous definition) for all Benchmark  settings at or after such time to reinstate such previously removed tenor.    (v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice  of the commencement of a Benchmark Unavailability Period with respect to a given  Benchmark, (A) the Borrower may revoke any pending request for a borrowing of,  conversion to or continuation of RFR Loans to be made, converted or continued during  any Benchmark Unavailability Period denominated in the applicable Currency and,  failing that, (I) in the case of any request for any affected SOFR Loans, if applicable, the  Borrower will be deemed to have converted any such request into a request for a  borrowing of or conversion to Alternate Base Rate Loans in the amount specified therein  and (II) in the case of any request for any affected RFR Loan, in a Foreign Currency, if  applicable, then such request shall be ineffective and (B)(I) any outstanding affected  SOFR Loans, if applicable, will be deemed to have been converted into Alternate Base  Rate Loans at the end of the applicable Interest Period and (II) any outstanding affected  RFR Loans, in each case, denominated in a Foreign Currency, at the Borrower’s election,  shall either (1) be converted into Alternate Base Rate Loans denominated in Dollars (in  an amount equal to the Dollar Equivalent of such Foreign Currency) immediately or (2)  be prepaid in full immediately; provided, that, with respect to any Daily Simple RFR  Loan, if no election is made by the Borrower by the date that is three (3) Business Days  after receipt by the Borrower of such notice, the Borrower shall be deemed to have  elected clause (1) above.  Upon any such prepayment or conversion, the Borrower shall  also pay accrued interest (except with respect to any prepayment or conversion of a Daily  Simple RFR Loan) on the amount so prepaid or converted, together with any additional  amounts required pursuant to Section 2.17.  During a Benchmark Unavailability Period  with respect to any Benchmark or at any time that a tenor for any then-current  Benchmark is not an Available Tenor, the component of the Alternate Base Rate based  upon the then-current Benchmark that is the subject of such Benchmark Unavailability  Period or such tenor for such Benchmark, as applicable, will not be used in any  determination of Alternate Base Rate.    2.15 Illegality.    (a) Notwithstanding any other provision of this Agreement, if (i) any Change in Law  shall make it unlawful for such Lender or its Lending Office to make or maintain SOFR Loans or  Daily Simple RFR Loans as contemplated by this Agreement or (ii) there shall have occurred any  change in national or international financial, political or economic conditions (including the  imposition of or any change in exchange controls) or currency exchange rates which would make  it unlawful or impossible for any Lender to make Loans denominated in any Foreign Currency to  the Borrower, as contemplated by this Agreement, then such Lender shall be an “Affected  Lender” and by written notice to the Borrower and to the Administrative Agent:    (A) such Affected Lender may declare that SOFR Loans or Daily  Simple RFR Loans (in the affected currency or currencies) will not thereafter (for  the duration of such unlawfulness or impossibility) be made by such Affected  Lender hereunder, whereupon any request for a SOFR Loan or Daily Simple  RFR Loan (in the affected currency or currencies) shall, as to such Affected  Lender only (1) if such Loan is not a Foreign Currency Loan, be deemed a  request for an Alternate Base Rate Loan (unless it should also be illegal for the  Affected Lender to provide an Alternate Base Rate Loan, in which case such  





 






  57  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Loan shall bear interest at a commensurate rate to be agreed upon by the  Administrative Agent and the Affected Lender, and so long as no Event of  Default shall have occurred and be continuing, the Borrower), unless such  declaration shall be subsequently withdrawn and (2) if such Loan is a Foreign  Currency Loan, be deemed to have been withdrawn, unless such declaration shall  be subsequently withdrawn; and    (B) such Affected Lender may require that all outstanding SOFR  Loans, or Daily Simple RFR Loans or Foreign Currency Loans (in the affected  currency or currencies), as the case may be, made by it be (1) if such Loans are  not Foreign Currency Loans, converted to Alternate Base Rate Loans, in which  event all such SOFR Loans or Daily Simple RFR Loans shall be automatically  converted to Alternate Base Rate Loans as of the effective date of such notice as  provided in paragraph (b) below or (2) if such Loans are Foreign Currency  Loans, repaid immediately, in which event all such Foreign Currency Loans (in  the affected currency or currencies) shall be required to be repaid in full by the  Borrower as of the effective date of such notice as provided in paragraph (b)  below.    If any Affected Lender shall exercise its rights under (i) or (ii) above with respect to any Loans  which are not Foreign Currency Loans, all payments and prepayments of principal which would  otherwise have been applied to repay the SOFR Loans or Daily Simple RFR Loans that would  have been made by such Affected Lender or the converted SOFR Loans or Daily Simple RFR  Loans of such Affected Lender shall instead be applied to repay the Alternate Base Rate Loans  made by such Affected Lender in lieu of, or resulting from the conversion, of such SOFR Loans  or Daily Simple RFR Loans.  An Affected Lender shall withdraw any notice given pursuant to  this Section at such time as the condition giving rise to such notice is reasonably determined by  such Affected Lender to no longer be applicable.    (b) Each Lender agrees to use reasonable efforts (including reasonable efforts to  change its Lending Office, as the case may be) to avoid or to minimize any amounts which might  otherwise be payable pursuant to this Section 2.15; provided, however, that such efforts shall not  cause the imposition on such Lender of any additional costs or legal or regulatory burdens  deemed by such Lender in its sole discretion to be material.    (c) For purposes of this Section 2.15, a notice to the Borrower by any Lender shall  be effective as to each such Loan, if lawful, on the last day of the Interest Period currently  applicable to such Loan; in all other cases such notice shall be effective on the date of receipt by  the Borrower.    2.16 Change in Law.    (a) Increased Costs Generally.  If any Change in Law shall:    (i)  impose, modify or deem applicable any reserve (including pursuant to  regulations issued from time to time by the FRB for determining the maximum reserve  requirement (including any emergency, special, supplemental or other marginal reserve  requirement) with respect to eurocurrency funding (currently referred to as  “Eurocurrency liabilities” in Regulation D of the FRB, as amended and in effect from  time to time)), special deposit, compulsory loan, insurance charge or similar requirement  





 






  58  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  against assets of, deposits with or for the account of, or credit extended or participated in  by, any Lender;     (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 Issuing Lender any other condition, cost or  expense (other than Taxes) 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 or such other  Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its  obligation to make any such Loan, or to increase the cost to such Lender, such Issuing Lender or  such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of  maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the  amount of any sum received or receivable by such Lender, Issuing Lender or other Recipient  hereunder (whether of principal, interest or any other amount) then, upon request of such Lender,  Issuing Lenders or other Recipient, the Borrower will pay to such Lender, Issuing Lender or other  Recipient, as the case may be, such additional amount or amounts as will compensate such  Lender, Issuing Lender or other Recipient, as the case may be, for such additional costs incurred  or reduction suffered.    (b) Capital Requirements.  If any Lender or Issuing Lender determines that any  Change in Law affecting such Lender or Issuing Lender or any lending office of such Lender or  such Lender’s or Issuing Lender’s holding company, if any, regarding capital or liquidity  requirements, has or would have the effect of reducing the rate of return on such Lender’s or  Issuing Lender’s capital or on the capital of such Lender’s or Issuing Lender’s holding company,  if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made  by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters  of Credit issued by any Issuing Lender, to a level below that which such Lender or Issuing Lender  or such Lender’s or Issuing Lender’s holding company could have achieved but for such Change  in Law (taking into consideration such Lender’s or Issuing Lender’s policies and the policies of  such Lender’s or Issuing Lender’s holding company with respect to capital adequacy or liquidity),  then from time to time the Borrower will pay to such Lender or Issuing Lender, as the case may  be, such additional amount or amounts as will compensate such Lender or Issuing Lender or such  Lender’s or Issuing Lender’s holding company for any such reduction suffered.    (c) Certificates for Reimbursement.  A certificate of a Lender or Issuing Lender  setting forth the amount or amounts necessary to compensate such Lender or Issuing Lender or its  holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and  delivered to the Borrower, shall be conclusive absent manifest error.  The Borrower shall pay  such Lender or Issuing Lender, as the case may be, the amount shown as due on any such  certificate within 10 days after receipt thereof.    (d) Delay in Requests.  Failure or delay on the part of any Lender or Issuing Lender  to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or  Issuing Lender’s right to demand such compensation; provided that the Borrower shall not be  required to compensate a Lender or Issuing Lender pursuant to this Section for any increased  





 






  59  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  costs incurred or reductions suffered more than six months prior to the date that such Lender or  Issuing Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to  such increased costs or reductions, and of such Lender’s or Issuing Lender’s intention to claim  compensation therefor (except that, if the Change in Law giving rise to such increased costs or  reductions is retroactive, then the six-month period referred to above shall be extended to include  the period of retroactive effect thereof).    (e)  Termination. The agreements in this Section 2.16 shall survive the termination  of this Agreement and payment of the Loans and all other amounts payable hereunder.    2.17 Indemnity.     The Borrower hereby indemnifies each of the Lenders against any loss, cost or expense  (including any loss, cost or expense arising from the liquidation or reemployment of funds or from any  fees payable) which may arise, be attributable to or result due to or as a consequence of (a) any failure by  the Borrower to make any payment when due of any amount due hereunder in connection with an RFR  Loan, (b) any failure of the Borrower to borrow or continue an RFR Loan or convert to an RFR Loan on a  date specified therefor in a Notice of Borrowing or Notice of Extension/Conversion, (c) any failure of the  Borrower to prepay any RFR Loan on a date specified therefor in any notice of prepayment, (d) any  payment, prepayment or conversion of any Daily Simple RFR Loan on a date other than on the Interest  Payment Date therefor (including as a result of an Event of Default) or any SOFR Loan on a date other  than the last day of the Interest Period therefor (including as a result of an Event of Default) or (e) the  assignment of any Daily Simple RFR Loan other than on the Interest Payment Date therefor or SOFR  Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the  Borrower.  A certificate of such Lender setting forth the basis for determining such amount or amounts  necessary to compensate such Lender shall be forwarded to the Borrower through the Administrative  Agent and shall be conclusively presumed to be correct save for manifest error.  All of the obligations of  the Credit Parties under this Section 2.17 shall survive the resignation or replacement of the  Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of  the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit  Document.    2.18 Taxes.    (a)  Defined Terms.  For purposes of this Section 2.18, the term “Lender” includes any  Issuing Lender and 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) the applicable Recipient receives an amount equal to the sum  it would have received had no such deduction or withholding been made.    





 






  60  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (c)  Payment of Other Taxes by the Borrower.  The Credit Parties shall timely pay to the  relevant Governmental Authority in accordance with applicable law, or at the option of the  Administrative Agent timely reimburse it for the payment of, any Other Taxes.    (d)  Indemnification by the Borrower.  The Credit Parties shall jointly and severally  indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified  Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this  Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such  Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such  Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.   A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a  copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a  Lender, shall be conclusive absent manifest error.    (e)  Indemnification by the Lenders.  Each Lender shall severally indemnify the  Administrative Agent, within 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 the 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 10.6 relating to  the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in  each case, that are payable or paid by the Administrative Agent in connection with any 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 the Administrative Agent shall be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and  apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise  payable by the Administrative Agent to the Lender from any other source against any amount due to the  Administrative Agent under this paragraph (e).    (f)  Evidence of Payments.  As soon as practicable after any payment of Taxes by any  Credit Party to a Governmental Authority pursuant to this Section 2.18, such Credit Party shall deliver to  the Administrative Agent the original or a certified copy of a receipt issued by such Governmental  Authority evidencing such payment, a copy of the return reporting such payment or other evidence of  such payment reasonably satisfactory to the Administrative Agent.    (g)  Status of Lenders.  (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 the  Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the  Administrative Agent, such properly completed and executed documentation reasonably requested by the  Borrower or the Administrative Agent as will permit such payments to be made without withholding or at  a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the  Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably  requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative  Agent to determine whether or not such Lender is subject to backup withholding or information reporting  requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion,  execution and submission of such documentation (other than such documentation set forth in Section  2.18(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.    





 






  61  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a  U.S. Borrower,     (A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative  Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from  time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),  executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup  withholding tax;     (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the  Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient)  on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from  time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),  whichever of the following is applicable:    (1)  in the case of a Foreign Lender claiming the benefits of an income tax treaty  to which the United States is a party (x) with respect to payments of interest under any  Credit Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E  establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to  the “interest” article of such tax treaty and (y) with respect to any other applicable  payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E  establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to  the “business profits” or “other income” article of such tax treaty;    (2)  executed 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 2.18-1 to the effect that such Foreign Lender is not a “bank” within the  meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower  within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign  corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance  Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; 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, IRS Form  W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.18- 2 or Exhibit 2.18-3, IRS Form W-9, and/or other certification documents from each  beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and  one or more direct or indirect partners of such Foreign Lender are claiming the portfolio  interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate  substantially in the form of Exhibit 2.18-4 on behalf of each such direct and indirect  partner;    (C)  any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the  Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient)  on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from  time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),  executed copies 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  





 






  62  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  documentation as may be prescribed by applicable law to permit the Borrower or the Administrative  Agent to determine the withholding or deduction required to be made; and    (D) if a payment made to a Lender under any 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 the Borrower and the Administrative Agent at the time or  times prescribed by law and at such time or times reasonably requested by the Borrower or the  Administrative Agent such documentation prescribed by applicable law (including as prescribed by  Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the  Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative  Agent to comply with their obligations under FATCA and to determine that such Lender has complied  with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from  such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to  FATCA after the date of this Agreement.    Each Lender agrees that if any form or certification it previously delivered expires or becomes  obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the  Borrower and the Administrative Agent in writing of its legal inability to do so.    (h)  Treatment of Certain Refunds.  If any party determines, in its sole discretion  exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified  pursuant to this Section 2.18 (including by the payment of additional amounts pursuant to this Section  2.18), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of  indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of  all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than  any interest paid by the relevant Governmental Authority with respect to such refund).  Such  indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the  amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by  the relevant Governmental Authority) in the event that such indemnified party is required to repay such  refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h),  in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to  this paragraph (h) the payment of which would place the indemnified party in a less favorable net after- Tax position than the indemnified party would have been in if the Tax subject to indemnification and  giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification  payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not  be construed to require any indemnified party to make available its Tax returns (or any other information  relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.    (i)  Survival.  Each party’s obligations under this Section 2.18 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement  of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all  obligations under any Credit Document.    2.19 Indemnification; Nature of Issuing Lender’s Duties.    (a) In addition to its other obligations under Section 2.4, the Borrower hereby agrees  to protect, indemnify, pay and hold the Issuing Lenders harmless from and against any and all  claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable  attorneys’ fees) that an Issuing Lender may incur or be subject to as a consequence, direct or  indirect, of (i) the issuance of any Letter of Credit, except to the extent resulting from the gross  





 






  63  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  negligence or willful misconduct of such Issuing Lender or (ii) the failure of such Issuing Lender  to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or  wrongful, of any present or future de jure or de facto government or governmental authority (all  such acts or omissions, herein called “Government Acts”).    (b) As between the Borrower and the applicable Issuing Lender, the Borrower shall  assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary  thereof.  The applicable Issuing Lender shall not be responsible for:  (i) the form, validity,  sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in  connection with the application for and issuance of any Letter of Credit, even if it should in fact  prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the  validity or sufficiency of any instrument transferring or assigning or purporting to transfer or  assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in  part, that may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of a  Letter of Credit to comply fully with conditions required in order to draw upon a Letter of Credit;  (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by  mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in  interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any  document required in order to make a drawing under a Letter of Credit or of the proceeds thereof;  and (vii) any consequences arising from causes beyond the control of the applicable Issuing  Lender, including, without limitation, any Government Acts.  None of the above shall affect,  impair, or prevent the vesting of the applicable Issuing Lender’s rights or powers hereunder.    (c) In furtherance and extension and not in limitation of the specific provisions  hereinabove set forth, any action taken or omitted by the applicable Issuing Lender, under or in  connection with any Letter of Credit or the related certificates, if taken or omitted in good faith,  shall not put such Issuing Lender under any resulting liability to the Borrower.  It is the intention  of the parties that this Agreement shall be construed and applied to protect and indemnify the  Issuing Lenders against any and all risks involved in the issuance of the Letters of Credit, all of  which risks are hereby assumed by the Borrower, including, without limitation, any and all risks  of the acts or omissions, whether rightful or wrongful, of any Governmental Authority.  No  Issuing Lender shall, in any way, be liable for any failure by such Issuing Lender or anyone else  to pay any drawing under any Letter of Credit as a result of any Government Acts or any other  cause beyond the control of such Issuing Lender.    (d) Nothing in this Section 2.19 is intended to limit the reimbursement obligation of  the Borrower contained in Section 2.4 hereof.  The obligations of the Borrower under this  Section 2.19 shall survive the termination of this Agreement.  No act or omissions of any current  or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Issuing  Lenders to enforce any right, power or benefit under this Agreement.    (e) Notwithstanding anything to the contrary contained in this Section 2.19, the  Borrower shall have no obligation to indemnify any Issuing Lender in respect of any liability  incurred by such Issuing Lender arising out of the gross negligence or willful misconduct of the  Issuing Lender, as determined by a court of competent jurisdiction.    2.20 Mitigation Obligations; Replacement of Lenders.      (a) Designation of a Different Lending Office.  If any Lender requests compensation  under Section 2.16, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any  Lender or any Governmental Authority for the account of any Lender pursuant to Section  2.18, then such  





 






  64  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office  for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of  its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment  (i) would eliminate or reduce amounts payable pursuant to Section 2.16 or 2.18, as the case may be, in the  future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not  otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs  and expenses incurred by any Lender in connection with any such designation or assignment.    (b) Replacement of Lenders.  If any Lender requests compensation under  Section 2.16, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any  Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.18 and, in  each case, such Lender has declined or is unable to designate a different lending office in accordance with  Section 2.20(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower  may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such  Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions  contained in, and consents required by, Section 10.6), all of its interests, rights (other than its existing  rights to payments pursuant to Section 2.16 or Section 2.18) 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:    (i) the Borrower shall have paid to the Administrative Agent the assignment  fee (if any) specified in Section 10.6;    (ii) such Lender shall have received payment of an amount equal to the  outstanding principal of its Loans and participations in L/C Disbursements, accrued  interest thereon, accrued fees and all other amounts payable to it hereunder and under the  other Credit Documents (including any amounts under Section 2.17) from the assignee  (to the extent of such outstanding principal and accrued interest and fees) or the Borrower  (in the case of all other amounts);    (iii) in the case of any such assignment resulting from a claim for  compensation under Section 2.16 or payments required to be made pursuant to  Section 2.18, such assignment will result in a reduction in such compensation or  payments thereafter;     (iv) such assignment does not conflict with applicable law; and    (v) in the case of any assignment resulting from a Lender becoming a Non- Consenting Lender, the applicable assignee shall have consented to the applicable  amendment, waiver or consent.    A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a  waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment  and delegation cease to apply.     2.21 [Reserved].    2.22 Cash Collateral.    At any time that there shall exist a Defaulting Lender, and to the extent such Defaulting Lender’s  LOC Obligations and its Swingline Exposure cannot be reallocated among the Non-Defaulting Lenders in  





 






  65  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  accordance with their respective Commitment Percentages as provided in Section 2.23(a)(iv) below, then  within three (3) Business Days following the request of the Administrative Agent, the Issuing Lenders or  any Swingline Lender, as applicable, the Borrower shall deliver Cash Collateral to the Administrative  Agent in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.23 and any  Cash Collateral provided by such Defaulting Lender).    (a) Grant of Security Interest.  All Cash Collateral (other than credit support not constituting  funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts with the  Administrative Agent.  The Borrower, and to the extent provided by any Lender, such Lender, hereby  grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative  Agent, the Issuing Lenders and the Lenders (including the Swingline Lender), and agrees to maintain, a  first priority security interest in all such cash, deposit accounts and all balances therein, and all other  property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for  the obligations to which such Cash Collateral may be applied pursuant to clause (b) below.  If at any time  the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person  other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is  less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the  relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to  the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.    (b) Application.  Notwithstanding anything to the contrary contained in this Agreement,  Cash Collateral provided under any of this Section or Section 2.23 in respect of Letters of Credit or  Swingline Loans, shall be held and applied to the satisfaction of the specific LOC Obligations, Swingline  Loans, 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 be provided for herein.    (c) Termination of Requirement.  Cash Collateral (or the appropriate portion thereof)  provided to reduce Fronting Exposure or other obligations shall no longer be required to be held as Cash  Collateral pursuant to this Section 2.22 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 (ii) the determination by the Administrative Agent, each Issuing Lender and each  Swingline Lender that there exists excess Cash Collateral; provided that, subject to Section 2.23, the  Person providing Cash Collateral and each Issuing Lender and Swingline Lender may agree that Cash  Collateral shall be held to support future anticipated Fronting Exposure or other obligations.    2.23 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 such Lender is no longer a Defaulting  Lender, to the extent permitted by applicable law:    (i) Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted  as set forth in the definition of Required Lenders and Section 10.1.    (ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other  amounts received by the Administrative Agent for the account of such Defaulting Lender  (whether voluntary or mandatory, at maturity, pursuant to Section 7 or otherwise) or received by  the Administrative Agent from a Defaulting Lender pursuant to Section 10.7 shall be applied at  such time or times as may be determined by the Administrative Agent as follows: first, to the  





 






  66  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  payment of any amounts owing by such Defaulting Lender to the Administrative Agent  hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting  Lender to any Issuing Lender or Swingline Lender hereunder; third, to Cash Collateralize the  Issuing Lenders’ or Swingline Lender’s Fronting Exposure in accordance with Section 2.22;  fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the  funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion  thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so  determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing  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 Issuing Lenders’ and the Swingline Lender’s future Fronting Exposure of such Defaulting  Lender with respect to future Letters of Credit issued under this Agreement in accordance with  Section 2.22; sixth, to the payment of any amounts owing to the Lenders, the Issuing Lenders or  Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any  Lender, the Issuing Lenders or Swingline Lender against such Defaulting Lender as a result of  such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no  Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a  result of any judgment of a court of competent jurisdiction obtained by the Borrower against such  Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this  Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of  competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of  any Loans or LOC Obligations in respect of which such Defaulting Lender has not fully funded  its appropriate share and (B) such Loans were made or the related Letters of Credit were issued at  a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall  be applied solely to pay the Loans of, and LOC Obligations owed to, all Non-Defaulting Lenders  on a pro rata basis prior to being applied to the payment of any Loans of, or LOC Obligations  owed to, such Defaulting Lender until such time as all Loans and funded and unfunded  participations in LOC Obligations and Swingline Loans are held by the Lenders pro rata in  accordance with the Commitments under the applicable facility without giving effect to Section  2.23(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 2.23(a)(ii) shall be deemed paid to and redirected by such Defaulting  Lender, and each Lender irrevocably consents hereto.    (iii) Defaulting Lender Fees.     (A) Commitment Fees.  No Defaulting Lender shall be entitled to receive any  Commitment Fee for any period during which such Lender is a Defaulting Lender (and  the Borrower shall not be required to pay any such fee that otherwise would have been  required to have been paid to such Defaulting Lender).    (B) Letter of Credit Fees.  Each Defaulting Lender shall be entitled to receive  Letter of Credit Fees for any period during which such 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 Section 2.22.    (C) Reallocation of Fees.  With respect to any Letter of Credit Fee not  required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the  Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee  otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s  participation in LOC Obligations or Swingline Loans that has been reallocated to such  





 






  67  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Lender and  Swingline Lender, as applicable, the amount of any such fee otherwise payable to such  Defaulting Lender to the extent allocable to such Issuing Lender’s or Swingline Lender’s  Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the  remaining amount of any such fee.    (iv) Reallocation of Participations to Reduce Fronting Exposure.  All or any part of  such Defaulting Lender’s participation in LOC Obligations and Swingline Loans shall be  reallocated among the Non-Defaulting Lenders in accordance with their respective Commitment  Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but  only to the extent that such reallocation does not cause the aggregate Committed Funded  Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving  Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any  party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting  Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting  Lender’s increased exposure following such reallocation.    (v) Cash Collateral, Repayment of Swingline Loans.  If the reallocation described in  clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice  to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in  an amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize  the Issuing Lenders’ Fronting Exposure in accordance with the procedures set forth in Section  2.22.    (b) Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the Swingline  Lender and each Issuing Lender each agree in writing in their sole discretion that a Defaulting Lender  should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties  hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth  therein (which may include arrangements with respect to any Cash Collateral), such Defaulting Lender  will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such  other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans  and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata  basis by the Lenders in accordance with their Commitment Percentages (without giving effect to Section  2.22(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments  will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower  while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise  expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will  constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been  a Defaulting Lender.    (c) Termination of Commitment.  The Borrower may terminate (i) the entire Commitment of  a Defaulting Lender to the extent there are no Loans or Letters of Credit outstanding at the time of such  termination or (ii) the unused amount of the Commitment of any Defaulting Lender, in each case upon not  less than ten Business Days’ prior notice to the Administrative Agent (which shall promptly notify the  Lenders thereof); provided that (A) no Event of Default shall have occurred and be continuing, and (B)  such termination shall not be deemed to be a waiver or release of any claim the Borrower, the  Administrative Agent, each Issuing Lender, the Swingline Lender or any Lender may have against such  Defaulting Lender.  If the unused amount of the Commitment of any Defaulting Lender is terminated  pursuant to clause (c)(ii) above, the provisions of Section 2.23(a)(ii) will apply to all amounts thereafter  paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on  





 






  68  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  account of principal, interest, fees (to the extent payable to such Defaulting Lender pursuant to Section  2.23(a)(iii)), indemnity or other amounts).    (d) New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender,  (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will  have no Fronting Exposure after giving effect to such Swingline Loan and (ii) no Issuing Lender shall be  required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no  Fronting Exposure after giving effect thereto.    2.24 Amend and Extend Transactions.     (a) Requests for Extension.  The Borrower may, by notice to the Administrative Agent (who  shall promptly notify the Lenders) not earlier than 90 days and not later than 30 days prior to each  anniversary of the Closing Date (such anniversary, the “Extension Date”), request that each Lender  extend such Lender’s Maturity Date for a period of one (1) year from the Maturity Date then in effect  hereunder (the “Existing Maturity Date”).     (b) Lender Elections to Extend.  Each Lender, acting in its sole and individual discretion,  shall, by notice to the Administrative Agent given not earlier than 60 days prior to the Extension Date and  not later than the date (the “Notice Date”) that is 15 days prior to the Extension Date, advise the  Administrative Agent whether or not such Lender agrees to such extension (and each Lender that  determines not to so extend its Maturity Date (a “Non-Extending Lender”) shall notify the Administrative  Agent of such fact promptly after such determination (but in any event no later than the Notice Date)) and  any Lender that does not so advise the Administrative Agent on or before the Notice Date shall be  deemed to be a Non-Extending Lender.  The election of any Lender to agree to such extension shall not  obligate any other Lender to so agree.     (c) Notification by Administrative Agent.  The Administrative Agent shall, promptly, but in  any event no later than the date ten (10) days prior to the proposed Extension Date (or, if such date is not  a Business Day, on the next preceding Business Day), notify the Borrower of each Lender’s  determination under this Section.    (d) Additional Commitment Lenders.  The Borrower shall have the right on or before the  Extension Date to replace each Non-Extending Lender with, and add as “Lenders” under this Agreement  in place thereof, one or more Eligible Assignees (each, an “Additional Commitment Lender”), each of  which Additional Commitment Lenders shall have entered into an agreement in form and substance  reasonably satisfactory to the Borrower and the Administrative Agent pursuant to which such Additional  Commitment Lender shall, effective as of the Extension Date, undertake a Commitment (and, if any such  Additional Commitment Lender is already a Lender, its Commitment shall be in addition to such  Lender’s Commitment hereunder on such date).    (e) Minimum Extension Requirement.  If (and only if) the total of the Commitments of the  Lenders that have agreed so to extend their Maturity Date and the additional Commitments of the  Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Commitments in  effect immediately prior to the Extension Date, then, effective as of the Extension Date, the Maturity Date  of each Extending Lender and of each Additional Commitment Lender shall be extended to the date  falling one (1) year after the Existing Maturity Date (except that, if such date is not a Business Day, such  Maturity Date as so extended shall be the next preceding Business Day) and each Additional  Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement.    





 






  69  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (f) Conditions to Effectiveness of Extensions.  Notwithstanding the foregoing, the extension  of the Maturity Date pursuant to this Section shall not be effective with respect to any Lender unless:  (i) no Default or Event of Default shall have occurred and be continuing on the date  of such extension and after giving effect thereto; and  (ii) the representations and warranties contained in this Agreement are true and  correct in all material respects (except to the extent any such representation and warranty is  qualified by materiality or reference to Material Adverse Effect, in which case, such  representation and warranty shall be true and correct in all respects) on and as of the date of such  extension and after giving effect thereto, as though made on and as of such date (or, if any such  representation or warranty is expressly stated to have been made as of a specific date, as of such  specific date).  (g) Payments to Non-Extending Lenders.  On or before the applicable Extension Date as to  which any Lender is a Non-Extending Lender, (1) the Borrower shall pay in full the principal of and  interest on all of the Revolving Loans made by such Non-Extending Lender to the Borrower hereunder  and (2) the Borrower shall pay in full all other amounts owing to such Lender hereunder.    (h) Limitation.  No more than two (2) extensions of the Maturity Date shall be permitted per  Lender pursuant to this Section 2.24.        SECTION 3  REPRESENTATIONS AND WARRANTIES     To induce the Lenders to enter into this Agreement and to make Loans herein provided for, the  Credit Parties hereby represent and warrant to the Administrative Agent and to each Lender that as of the  Closing Date and as of each date such representations and warranties are required to be made in  accordance with the terms of the Credit Documents:    3.1 Financial Statements.     The Borrower has delivered to the Administrative Agent copies of the financial statements of the  Borrower and its Subsidiaries referenced in Section 4.1(f).  The financial statements described in Sections  4.1(f)(ii) and (iii) (including in each case the related schedules and notes) fairly present in all material  respects the Consolidated financial position of the Borrower and its Subsidiaries as of the respective dates  specified in such financial statements and the Consolidated results of their operations and cash flows for  the respective periods so specified and have been prepared in accordance with GAAP consistently applied  throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim  financial statements, to normal year-end adjustments and the absence of footnotes).    3.2 Organization; Existence; Patriot Act Information.     Each of the Credit Parties is duly organized, validly existing and in good standing under the laws  of its jurisdiction of organization, and is duly qualified as a foreign entity and is in good standing under  the laws of each jurisdiction in which such qualification is required by law, other than those jurisdictions  as to which the failure to be so qualified or in good standing would not, individually or in the aggregate,  reasonably be expected to have a Material Adverse Effect.  Each of the Credit Parties has the corporate  power and authority to own or hold under lease the properties it purports to own or hold under lease, to  





 






  70  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the  other Credit Documents and to perform the provisions hereof and thereof.  Set forth on Schedule 3.2 as of  the Closing Date, and as of the last date such Schedule was required to be updated in accordance with  Section 5.2, is the following information for each Credit Party:  the exact legal name of such Credit Party  in the four (4) months prior to the Closing Date, the state of incorporation or organization, the type of  organization, the jurisdictions in which such Credit Party is qualified to do business, the chief executive  office, the principal place of business, the business phone number, the organization identification number,  the federal tax identification number and ownership information (e.g. publicly held, if private or  partnership, the owners and partners of each of the Credit Parties).  No Credit Party nor any Subsidiary  thereof is an EEA Financial Institution.    3.3 Authorization; Power; Enforceable Obligations.     This Agreement and the other Credit Documents have been duly authorized by all necessary  corporate or limited liability company action on the part of the Borrower and the other Credit Parties, and  this Agreement constitutes, and upon execution and delivery thereof each Credit Document will  constitute, a legal, valid and binding obligation of the Credit Parties executing such documents  enforceable against such Credit Parties in accordance with their respective terms, except as such  enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or  other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of  equity (regardless of whether such enforceability is considered in a proceeding in equity or at law.      3.4 Consent; Government Authorizations.     No approval, consent or authorization of, filing with, notice to or other act by or in respect of, any  Governmental Authority or any other Person is required in connection with acceptance of extensions of  credit by the Borrower or the making of the guaranties hereunder or with the execution, delivery or  performance of any Credit Documents by the other Credit Parties (other than those which have been  obtained) or with the validity or enforceability of any Credit Document against the Credit Parties, except  such filings as are required to be made with and have been, or will be, made on a timely basis with, the  United States Securities and Exchange Commission.    3.5 No Material Litigation.    (a) As of the Closing Date, there are no actions, suits or proceedings pending or, to  the knowledge of the Borrower, threatened against or affecting the Borrower or any Subsidiary or  any property of the Borrower or any Subsidiary in any court or before any arbitrator of any kind  or before or by any Governmental Authority that, individually or in the aggregate, would  reasonably be expected to have a Material Adverse Effect.    (b) As of the Closing Date, neither the Borrower nor any Subsidiary is in default  under any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or  is in violation of any applicable law, ordinance, rule or regulation (including without limitation  Environmental Laws) of any Governmental Authority, which default or violation, individually or  in the aggregate, would reasonably be expected to have a Material Adverse Effect.    3.6 Taxes.    The Borrower and its Subsidiaries have filed all tax returns (federal, state, local and foreign) that  are required to have been filed in any jurisdiction, and have paid all income taxes shown to be due and  payable (including interest and penalties) on such returns and all other taxes and assessments payable by  





 






  71  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  them, to the extent such taxes and assessments have become due and payable and before they have  become delinquent, except for any taxes and assessments (a) the amount of which is not individually or in  the aggregate Material or (b) the amount, applicability or validity of which is currently being contested in  good faith by appropriate proceedings and with respect to which the Borrower or a Subsidiary, as the case  may be, has established adequate reserves in accordance with GAAP.  None of the Credit Parties or their  respective Subsidiaries are aware, as of the Closing Date, of any proposed tax assessments against it or  any of its Subsidiaries which would reasonably be expected to have a Material Adverse Effect.      3.7 ERISA.    (a) Each Credit Party and each ERISA Affiliate have operated and administered each  Plan (other than Multiemployer Plans) in compliance with all applicable laws except for such  instances of noncompliance as have not resulted in and would not reasonably be expected to  result in a Material Adverse Effect.  Neither any Credit Party nor any ERISA Affiliate has  incurred any liability pursuant to Title IV of ERISA (other than for premiums payable to the  PBGC not yet due) or the penalty or excise tax provisions of the Code relating to employee  benefit plans (as defined in Section 3 of ERISA) or for failure to comply with the provisions of  Title I of ERISA, in each case which has not been satisfied, and no event, transaction or condition  has occurred or exists that would reasonably be expected to result in the incurrence of any such  liability by any Credit Party or any ERISA Affiliate, or in the imposition of any Lien on any of  the rights, properties or assets of any Credit Party or any ERISA Affiliate, in either case pursuant  to Title I or IV of ERISA or to such penalty or excise tax provisions including Section 401(a)(29)  or 412 of the Code, other than, for purposes of this sentence, such liabilities, penalties, excise  taxes or Liens as would not be individually or in the aggregate Material.    (b) The present value of all “benefit liabilities” (as defined in Section 4001(a)(16) of  ERISA), whether or not vested, under all Single Employer Plans, determined with respect to each  Single Employer Plan, as of the most recent valuation date prior to the date on which this  representation is made or deemed made (determined, in each case, in accordance with the  Financial Account Standards Board Statement 87 utilizing the actuarial valuation report) did not  exceed the fair market value of the assets of the Single Employer Plans by more than $40,000,000  in the aggregate for all such Plans.    (c) Neither any Credit Party nor any ERISA Affiliate has incurred any withdrawal  liabilities under Section 4201 of ERISA that have not been satisfied or is subject to contingent  withdrawal liabilities under Section 4204 of ERISA with respect to any Multiemployer Plan that  individually or in the aggregate are Material.  Neither any Credit Party nor any ERISA Affiliate  has received any notification that any Multiemployer Plan is in Reorganization, Insolvency, or  has been terminated (within the meaning of Title IV of ERISA), and, to the knowledge of the  Credit Parties, no Multiemployer Plan is reasonably expected to be in Reorganization,  Insolvency, or terminated.    (d) The aggregate expected post-retirement benefit obligation (determined with  respect to a Credit Party as of the last day of the Credit Party’s most recently ended fiscal year in  accordance with Financial Accounting Standards Board Statement No. 106, without regard to  liabilities attributable to continuation coverage mandated by Section 4980B of the Code or similar  state law) of the Credit Parties and their Subsidiaries would not reasonably be expected to have a  Material Adverse Effect.  Each Plan which is an “employee welfare benefit plan” (as defined in  Section 3(1) of ERISA) maintained by the Credit Party or any ERISA Affiliate to which Sections  601 or 609 of ERISA and Section 4980B of the Code apply has been administered in compliance  in all material respects with such sections.  





 






  72  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    (e) The execution and delivery of this Agreement and the other Credit Documents  hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of  ERISA or in connection with which a tax could be imposed pursuant to Section 4975(c)(1)(A)- (D) of the Code.  The representation and warranty of the Credit Parties in the preceding sentence  is made on reliance upon and subject to the accuracy of the Lenders’ representations in Section  2.22 and any purchasing Lender’s representations made pursuant to Section 10.6.    (f) As of the Closing Date, the Borrower is not and will not be 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 to repay or secure any of the Obligations, the Letters of Credit or the  Commitments.      3.8 Governmental Regulations, Anti-Terrorism Laws; Etc.    (a) No part of the proceeds of the Loans hereunder will be used, directly or  indirectly, for the purpose of purchasing or carrying any “margin stock” within the meaning of  Regulation U.  If requested by any Lender or the Administrative Agent, the Borrower will furnish  to the Administrative Agent and each Lender a statement to the foregoing effect in conformity  with the requirements of FR Form U-1 referred to in said Regulation U.  No Indebtedness being  reduced or retired out of the proceeds of the Loans hereunder 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 25% of the value of the Consolidated Assets of the  Borrower and its Subsidiaries.  Neither the execution and delivery hereof by the Borrower, nor  the performance by it of any of the Transactions (including, without limitation, the direct or  indirect use of the proceeds of the Loans) will violate or result in a violation of the Securities Act  of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or regulations issued  pursuant thereto, or Regulation T, U or X.    (b) The Borrower is not (i) an “investment company” registered or required to be  registered under the Investment Company Act of 1940, as amended, and is not controlled by such  a company, or (ii) a “holding company”, or a “subsidiary company” of a “holding company”, or  an “affiliate” of a “holding company” or of a “subsidiary” of a “holding company”, within the  meaning of the Public Utility Holding Company Act of 2005, as amended.    (c) The use of the proceeds of the Loans hereunder will not violate the Trading with  the Enemy Act, as amended, or any of the foreign assets control regulations of the United States  Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or  executive order relating thereto.  Without limiting the foregoing, none of the Credit Parties is or  will (i) become a person whose property or interest in property are blocked pursuant to Section 1  of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions  With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079  (2001)) or (ii) to the best of its knowledge, engage in any dealings or transactions relating to any  property or interests in property blocked pursuant to Executive Order 13224.    (d) No Credit Party nor any of its Subsidiaries or, to their knowledge, any of their  Related Parties (i) is a Sanctioned Person or currently the subject or target of any Sanctions, (ii) is  controlled by or is acting on behalf of a Sanctioned Person, (iii) has its assets located in a  Sanctioned Country, (iv) is under administrative, civil or criminal investigation for an alleged  





 






  73  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  violation of, or received notice from or made a voluntary disclosure to any governmental entity  regarding a possible violation of, Anti-Corruption Laws, Anti-Money Laundering Laws or  Sanctions by a governmental authority that enforces Sanctions or any Anti-Corruption Laws or  Anti-Money Laundering Laws, or (v) directly or indirectly derives revenues from investments in,  or transactions with, Sanctioned Persons.    (e) Each of the Borrower and its Subsidiaries has implemented and maintains in  effect policies and procedures designed to ensure compliance by the Borrower and its  Subsidiaries and their respective directors, officers and employees with all Anti-Corruption Laws,  Anti-Money Laundering Laws and applicable Sanctions.     (f) Neither the making of the Loans hereunder nor the Borrower’s use of the  proceeds thereof will violate Section 3.10(b).    3.9 Subsidiaries.    (a) As of the Closing Date or as of the last date such Schedule was required to be  updated in accordance with Section 5.2, set forth on Schedule 3.9 is (except as noted therein) a  complete and correct list of the Borrower’s Subsidiaries showing, as to each Subsidiary, the  correct name thereof, the jurisdiction of its organization, and the percentage of shares of each  class of its Equity Interests outstanding owned by the Borrower and each other Subsidiary.    (b) As of the Closing Date or as of the last date such Schedule was required to be  updated in accordance with Section 5.2, all of the outstanding shares of Equity Interests of each  Subsidiary shown in Schedule 3.9 as being owned by the Borrower and its Subsidiaries have been  validly issued, are fully paid and nonassessable and are owned by the Borrower or another  Subsidiary free and clear of any Lien (except as otherwise disclosed in Schedule 3.9).    (c) Each Subsidiary identified in Schedule 3.9 is a corporation or other legal entity  duly organized, validly existing and in good standing under the laws of its jurisdiction of  organization (if such jurisdiction provides for such a concept), and is duly qualified as a foreign  corporation or other legal entity and is in good standing in each jurisdiction in which such  qualification is required by law, other than those jurisdictions as to which the failure to be so  qualified or in good standing would not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.  Each such Subsidiary has the corporate or other power and  authority to own or hold under lease the properties it purports to own or hold under lease and to  transact the business it transacts and proposes to transact.    3.10 Use of Proceeds.    (a) The Extensions of Credit will be used solely to provide for the working capital  and general corporate requirements of the Borrower, including Permitted Acquisitions and  dividends and stock repurchases permitted hereunder.    (b) The Borrower will not request any Extension of Credit, and the Borrower shall  not use, and shall ensure that its Subsidiaries and its or their respective directors, officers,  employees and agents shall not use, the proceeds of any Extension of Credit, directly or  indirectly, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment  or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption  Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or  





 






  74  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner  that would result in the violation of any Sanctions applicable to any party hereto.    3.11 Contractual Obligations; Compliance with Laws; No Conflicts.     The execution, delivery and performance by the Borrower and the other Credit Parties, as  applicable, of this Agreement and the other Credit Documents will not (a) result in the creation of any  Lien in respect of any property of the Borrower or any Subsidiary under any indenture, mortgage, deed of  trust, loan, purchase or credit agreement, lease, corporate charter or by-laws, or any other Material  agreement or instrument to which the Borrower or any Subsidiary is bound or by which the Borrower or  any Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or result in  a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any  court, arbitrator or Governmental Authority applicable to the Borrower or any Subsidiary, (c) violate any  Requirement of Law applicable to the Borrower or any of its Subsidiaries (except those as to which  waivers or consents have been obtained) or (d) conflict with, result in a breach of or constitute a default  under (i) the articles of incorporation, bylaws or other organizational documents of such Person, (ii) any  Material indenture, agreement or other instrument to which such Person is a party or by which any of its  properties may be bound or (iii) any approval of any Governmental Authority relating to such Person.    3.12 Accuracy and Completeness of Information.     All factual information heretofore, contemporaneously or hereafter furnished by or on behalf of  the Borrower or any Credit Party in writing to the Administrative Agent or any Lender for purposes of or  in connection with this Agreement or any other Credit Document, or the Transactions, is or will be true  and accurate in all material respects as of the date stated therein and not incomplete by omitting to state  any material fact necessary to make such information not misleading; provided that, with respect to  projected financial information, the Borrower represents only that such information was prepared in good  faith based upon assumptions believed to be reasonable at the time.  There is no fact now known to the  Borrower or any Credit Party which has, or would reasonably be expected to have, a Material Adverse  Effect which fact has not been set forth herein, in the financial statements of the Borrower furnished to  the Administrative Agent and/or the Lenders, or in any certificate, opinion or other written statement  made or furnished by the Borrower or any Credit Party to the Administrative Agent and/or the Lenders.  As of the Closing Date, all of the information included in the Beneficial Ownership Certification (or any  certification that the Borrower qualifies for an express exclusion from the “legal entity customer”  definition under the Beneficial Ownership Regulations) is true and correct.    3.13 Environmental Matters.    (a) Except where such violation or liability would not reasonably be expected to  have a Material Adverse Effect, the facilities and properties owned, leased or operated by any of  the Credit Parties and their Subsidiaries (the “Properties”) do not contain any Materials of  Environmental Concern in amounts or concentrations which (i) constitute a violation of, or  (ii) have resulted in liability under, any Environmental Law.    (b) Except where such violation would not reasonably be expected to have a Material  Adverse Effect, (i) the Properties and all operations of the Credit Parties and their Subsidiaries at  the Properties are in compliance, and have in the last five years been in compliance, in all  material respects with all applicable Environmental Laws, and (ii) there is no contamination at or  under the Properties or violation of any Environmental Law with respect to the Properties or the  business operated by any of the Credit Parties (the “Business”).    





 






  75  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (c) Neither the Borrower nor any of its Subsidiaries has received any written notice  of violation, alleged violation, non-compliance, liability or potential liability regarding  environmental matters or compliance with Environmental Laws with regard to any of the  Properties or the Business which would reasonably be expected to have a Material Adverse  Effect, nor does the Borrower nor any of its Subsidiaries have knowledge of any such threatened  notice.    (d) Except where such violation or liability would not reasonably be expected to  have a Material Adverse Effect, (i) Materials of Environmental Concern have not been  transported or disposed of from the Properties in violation of, or in a manner or to a location  which has given rise to liability under any Environmental Law, and (ii) Materials of  Environmental Concern have not been generated, treated, stored or disposed of at, on or under  any of the Properties in violation of, or in a manner that has given rise to liability under, any  applicable Environmental Law.    (e) Except where such proceeding or action would not reasonably be expected to  have a Material Adverse Effect, (i) no judicial proceeding or governmental or administrative  action is pending or, to the knowledge of any Credit Party, threatened, under any Environmental  Law to which any of the Credit Parties is or will be named as a party with respect to the  Properties or the Business, and (ii) there are no consent decrees or other decrees, consent orders,  administrative orders or other orders, or other administrative or judicial directives outstanding  under any Environmental Law with respect to the Properties or the Business.    (f) Except where such violation or liability would not reasonably be expected to  have a Material Adverse Effect, there has been no release or threat of release of Materials of  Environmental Concern at or from the Properties, or arising from or related to the operations of  any of the Credit Parties in connection with the Properties or otherwise in connection with the  Business, in violation of or in amounts or in a manner requiring remediation under Environmental  Laws.    3.14 No Burdensome Restrictions.     None of the Borrower or any of its Subsidiaries is a party to any agreement or instrument or  subject to any other obligation or any charter or corporate restriction which, individually or in the  aggregate, would reasonably be expected to have a Material Adverse Effect.    3.15 Title to Property.     The Borrower and its Subsidiaries have good and sufficient title to their respective Material  properties, including all such properties reflected in the most recent audited balance sheet referred to in  Section 3.1 and Section 5.1 or purported to have been acquired by the Borrower or any Subsidiary after  said date (except as sold or otherwise disposed of in the ordinary course of business or as otherwise  permitted hereunder), in each case free and clear of Liens prohibited by this Agreement, except for those  defects in title and Liens that, individually or in the aggregate, would not reasonably be expected to have  a Material Adverse Effect.      3.16 Insurance.     As of the Closing Date or as of the last date such Schedule was required to be updated in  accordance with Section 5.2, the insurance coverage of the Borrower and its Subsidiaries is outlined as to  





 






  76  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  carrier, policy number, expiration date, type and amount on Schedule 3.16 and such insurance coverage  complies with the requirements set forth in Section 5.5.    3.17 Licenses and Permits.     The Borrower and its Subsidiaries own or possess all licenses, permits, franchises, authorizations,  patents, copyrights, service marks, trademarks and trade names, or rights thereto, required for the  continued conduct of their business, that are Material, without known conflict with the rights of others,  except for those conflicts or failures to own or possess that, individually or in the aggregate, would not  reasonably be expected to have a Material Adverse Effect.    3.18 Labor Matters.     There are no collective bargaining agreements covering the employees of the Credit Parties as of  the Closing Date, and none of the Credit Parties has suffered any material strikes, walkouts, work  stoppages or other material labor difficulty within the five years prior to the date hereof.    3.19 No Material Adverse Effect.    Since January 1, 2022, there has been no development or event which has had or could  reasonably be expected to have a Material Adverse Effect as of the Closing Date.    3.20 Solvency.    Before and after giving effect to the Transactions, (a) the Credit Parties, taken as a whole, are  solvent and able to pay their debts and other liabilities, contingent obligations and other commitments as  they mature in the normal course of business, (b) the fair saleable value of the assets of the Credit Parties,  measured on a going concern basis and taken as a whole, exceeds all probable liabilities, including those  to be incurred pursuant to this Agreement, (c) the Credit Parties do not have unreasonably small capital,  taken as a whole, in relation to the business in which they are or propose to be engaged and (d) the Credit  Parties, taken as a whole, have not incurred, nor believe that they will incur, debts beyond their ability to  pay such debts as they become due.  In executing the Credit Documents and consummating the  Transactions, none of the Credit Parties intends to hinder, delay or defraud either present or future  creditors or other Persons to which one or more of the Credit Parties is or will become indebted.      3.21 Authorized Officer.    As of the Closing Date, set forth on Schedule 3.21 are Responsible Officers that are permitted to  sign Credit Documents on behalf of the Credit Parties, holding the offices indicated next to their  respective names.  Such Authorized Officers are the duly elected and qualified officers of such Credit  Party and are duly authorized to execute and deliver, on behalf of the respective Credit Party, this  Agreement, the Notes and the other Credit Documents.      SECTION 4  CONDITIONS    4.1 Conditions to Closing.     This Agreement shall become effective upon, and the obligation of each Lender to make Loans  hereunder is subject to, the satisfaction of the following conditions precedent:  





 






  77  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    (a) Execution of Credit Agreement and Credit Documents.  Receipt by the  Administrative Agent of (i) multiple counterparts of this Agreement and (ii) for the account of  each Lender that requests a Revolving Note, Revolving Notes and for the account of the  Swingline Lender, a Swingline Note, in each case executed by a duly authorized officer of each  party thereto and in each case conforming to the requirements of this Agreement.    (b) Legal Opinion.  Receipt by the Administrative Agent of a legal opinion of  counsel to the Credit Parties relating to this Agreement and the other Credit Documents and the  Transactions, in form and substance reasonably acceptable to the Administrative Agent.    (c) Liability, Casualty, Property and Business Interruption Insurance.  The  Administrative Agent shall have received copies of insurance policies or certificates of insurance  evidencing the Credit Parties’ principal liability, casualty, property and business interruption  insurance meeting the requirements set forth herein.     (d) Corporate Documents. Receipt by the Administrative Agent of a certificate of the  secretary or assistant secretary of the Borrower as of the Closing Date to the effect that:    (i) Articles of Incorporation.  Attached thereto are true and correct copies of  the articles of incorporation or charter documents of the Credit Parties, which have not  been repealed, revoked, rescinded or further amended in any respect, and remain in full  force and effect as of the date hereof.    (ii) Resolutions.  Attached thereto are true and correct copies of resolutions  of the board of directors or comparable managing body of the Credit Parties approving  and adopting the respective Credit Documents, the Transactions and authorizing  execution and delivery thereof, and that the same are in full force and effect.    (iii) Bylaws.  Attached thereto are true and correct copies of the bylaws,  operating agreement or partnership agreement of the Credit Parties, which have not been  repealed, revoked, rescinded or further amended in any respect, and remain in full force  and effect as of the date hereof.    (iv) Good Standing.  Copies, where applicable, of certificates of good  standing, existence or its equivalent of each of the Credit Parties certified as of a recent  date by the appropriate Governmental Authorities of the State of organization.     (e) Officer’s Certificate.  Receipt by the Administrative Agent of a certificate, in  form and substance reasonably satisfactory to it, of an Authorized Officer certifying that  immediately after giving effect to this Agreement (including the initial Extensions of Credit  hereunder), the other Credit Documents, and the Transactions, (i) no Default or Event of Default  exists and (ii) all representations and warranties contained herein and in the other Credit  Documents are true and correct in all material respects (without duplication of any materiality  qualifier set forth in such representations and warranties).     (f) Financial Information.  Receipt by the Administrative Agent of (i) financial and  operational projections of balance sheets, income statements and cash flow statements for the  Borrower and its Subsidiaries together with a reasonably detailed explanation of all management  assumptions contained therein, which projections shall be in form and substance satisfactory to the  Administrative Agent and the Lenders (which shall be quarterly for the first year after the Closing  





 






  78  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Date and annually thereafter for the term of this Agreement), (ii) the final audited financial  statements of the Borrower for the fiscal year most recently ended for which for which financial  statements are available and (iii) the unaudited quarterly financial statements of the Borrower for  each quarterly period ended since the last audited financial statements for which financial statements  are available.    (g) Capital Structure/Other Documentation/Patriot Act Information. Receipt by the  Administrative Agent of any information requested by it relating to the corporate and capital  structure of the Borrower and its Subsidiaries and the Patriot Act information required by Section  3.2.      (h) Consents.  The Administrative Agent shall have received evidence that all  necessary governmental, corporate, shareholder and third party consents and approvals, if any, in  connection with the Transactions have been received and no condition exists which would  reasonably be likely to restrain, prevent or impose any material adverse conditions on the  Transactions.    (i) No Material Adverse Change.  No material adverse change shall have occurred  since January 1, 2022 in the business, assets, liabilities, or financial condition of the Borrower  and its Subsidiaries taken as a whole.    (j) Litigation. There shall not exist any pending or, to the knowledge of the  Borrower, threatened litigation, investigation, bankruptcy or insolvency, injunction, order or  claim affecting or relating to any Credit Party or any of its Subsidiaries, this Agreement and the  other Credit Documents that has not been settled, dismissed, vacated, discharged or terminated  prior to the Closing Date which would reasonably be expected to have a Material Adverse Effect.    (k) Beneficial Ownership. The Borrower shall have delivered to the Administrative  Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in  relation to it (or a certification that such Borrower qualifies for an express exclusion to the “legal  entity customer” definition under the Beneficial Ownership Regulation), in each case at least five  (5) Business Days prior to the Closing Date.    (l) Fees.  Receipt by the Administrative Agent and the Lenders of all fees, if any,  then owing pursuant to the Administrative Agent Fee Letter and the Joint Fee Letter, Section 2.10  or pursuant to any other Credit Document.    (m) Additional Matters.  All other documents and legal matters in connection with  the Transactions shall be reasonably satisfactory in form and substance to the Administrative  Agents and the Required Lenders.    Without limiting the generality of the provisions of Section 8.4, for purposes of determining  compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement  shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or  other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a  Lender unless the Administrative Agent shall have received notice from such Lender prior to the  proposed Closing Date specifying its objection thereto.    





 






  79  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  4.2 Conditions to All Extensions of Credit.     The obligation of each Lender to make any Extension of Credit hereunder is subject to the  satisfaction of the following conditions precedent on the date of making such Extension of Credit:    (a) Representations and Warranties.  The representations and warranties made by the  Credit Parties herein or in any other Credit Document  (other than, in the case of any Extension of  Credit after the Closing Date, Sections 3.5 and 3.19) or which are contained in any certificate  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 qualifier set forth in such representations  and warranties) on and as of the date of such Extension of Credit as if made on and as of such  date (except for those which expressly relate to an earlier date which shall be true and correct as  of such date).    (b) No Default or Event of Default.  No Default or Event of Default shall have  occurred and be continuing on such date or after giving effect to the Extension of Credit to be  made on such date.    (c) Compliance with Commitments.  Immediately after giving effect to the making  of any such Extension of Credit (and the application of the proceeds thereof), (i) the sum of the  aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans  plus outstanding LOC Obligations plus outstanding Competitive Loans shall not exceed the  Aggregate Revolving Committed Amount, (ii) the outstanding LOC Obligations shall not exceed  the LOC Committed Amount and (iii) the outstanding Swingline Loans shall not exceed the  Swingline Committed Amount (except that if the Extension of Credit then being made is a  continuation or extension of an Interest Period applicable to a Swingline Loan denominated in a  Foreign Currency, clauses (i) and (iii) shall not be required to be satisfied as a condition thereto to  the extent of any excess resulting from exchange rate fluctuations regarding the Dollar Amount of  Swingline Loans denominated in Foreign Currencies of not greater than 10% of the Swingline  Committed Amount).     Each request for an Extension of Credit (including extensions and conversions) and each  acceptance by the Borrower of an Extension of Credit (including extensions and conversions) shall be  deemed to constitute a representation and warranty by the Borrower as of the date of such Loan that the  conditions in subsections (a) and (b) of this Section have been satisfied.      SECTION 5  AFFIRMATIVE COVENANTS     The Credit Parties covenant and agree that on the Closing Date, and so long as this Agreement is  in effect and until the Commitments have been terminated, no Loans remain outstanding and all amounts  owing hereunder or under any other Credit Document or in connection herewith or therewith (other than  contingent indemnification obligations as to which no demand has been made in writing and other  obligations that have been Cash Collateralized) have been paid in full, the Credit Parties shall, and shall  cause each Subsidiary to:     





 






  80  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  5.1 Financial Statements.     Furnish, or cause to be furnished, to the Administrative Agent and the Lenders:    (a) as soon as available, but in any event within ninety (90) days after the end of  each fiscal year of the Borrower (or, if earlier, within five (5) Business Days after such date as the  Borrower is required to file its annual report on Form 10-K for such fiscal year with the Securities  and Exchange Commission), a Consolidated balance sheet of the Borrower and its Subsidiaries as  at the end of such fiscal year, and the related Consolidated statements of income or operations,  shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative  form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance  with GAAP, such Consolidated statements to be audited and accompanied by a report and  opinion of an independent certified public accountant of nationally recognized standing, which  report and opinion shall be prepared in accordance with generally accepted auditing standards and  shall not be subject to any “going concern” or like qualification or exception or any qualification  or exception as to the scope of such audit;     (b) as soon as available, but in any event within forty-five (45) days after the end of  each of the first three fiscal quarters of each fiscal year of the Borrower  (or, if earlier, within five  (5) Business Days after such date as the Borrower is required to file its quarterly report on Form  10-Q for such fiscal quarter with the Securities and Exchange Commission), a Consolidated  balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the  related Consolidated statements of income or operations, shareholders’ equity and cash flows for  such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in  each case in comparative form the figures for the corresponding fiscal quarter of the previous  fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such  Consolidated statements to be certified by an Authorized Officer of the Borrower as fairly  presenting the financial condition, results of operations, shareholders’ equity and cash flows of  the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end  audit adjustments and the absence of footnotes; and    (c) as soon as available, but in any event within sixty (60) days after the end of each  fiscal year, a copy of the detailed annual operating budget or plan including cash flow projections  of the Borrower and its Subsidiaries, prepared on a Consolidated basis, for the next fiscal year on  a quarterly basis, in form and detail reasonably acceptable to the Administrative Agent and the  Lenders, together with a summary of the material assumptions made in the preparation of such  annual budget or plan.    As to any information contained in materials furnished pursuant to Section 5.2(d), the Borrower  shall not be separately required to furnish such information under clause (a) or (b) above, but the  foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and  materials described in clauses (a) and (b) above at the times specified therein.  All such financial  statements shall be complete and correct in all material respects (subject, in the case of interim statements,  to normal recurring year-end audit adjustments) and shall be prepared in reasonable detail and in  accordance with GAAP applied consistently throughout the periods reflected therein and further  accompanied by a description of, and an estimation of the effect on the financial statements on account of,  any change in the application of accounting principles as provided in Section 1.3.    5.2 Certificates; Other Information.     Furnish, or cause to be furnished, to the Administrative Agent for distribution to the Lenders:  





 






  81  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    (a) Accountant’s Certificate and Reports.  Concurrently with the delivery of the  financial statements referred to in Section 5.1(a) above, a certificate of the independent certified  public accountants reporting on such financial statements stating that in making the examination  necessary therefor no knowledge was obtained of any breach of Section 5.9, except as specified  in such certificate.    (b) Officer’s Certificate.  Concurrently with the delivery of the financial statements  referred to in Sections 5.1(a) and 5.1(b) above, a certificate of an Authorized Officer stating that,  to the best of such Authorized Officer’s knowledge and belief, (i) the financial statements fairly  present in all material respects the financial condition of the parties covered by such financial  statements, (ii) during such period each Credit Party has observed or performed its covenants and  other agreements hereunder and under the other Credit Documents, and satisfied the conditions  contained in this Agreement to be observed, performed or satisfied by it (except to the extent  waived in accordance with the provisions hereof), (iii) such Authorized Officer has obtained no  knowledge of any Default or Event of Default except as specified in such certificate and  (iv) solely in connection with the delivery of the financial statements referred to in Section 5.1(a),  there has been no development or event during the fiscal year covered thereby which has had or  would reasonably be expected to have a Material Adverse Effect.  Such certificate shall include  the calculations required to indicate compliance with Section 5.9 as of the last day of the period  covered by such financial statements.  A form of Officer’s Certificate is attached as Exhibit  5.2(b).    (c) Other Information.  Promptly, such additional financial and other information as  the Administrative Agent, at the request of any Lender, may from time to time reasonably  request.    (d) Public Information.  Promptly after the same are sent, copies of all reports (other  than those otherwise provided pursuant to Section 5.1) and other financial information which any  Credit Party sends to its public stockholders, and promptly after the same are filed, copies of all  financial statements and non-confidential reports which any Credit Party may make to, or file  with, the Securities and Exchange Commission or any successor or analogous United States  Governmental Authority.    (e) Permitted Acquisition Information.  Not less than five (5) Business Days prior to  the consummation of any Qualified Permitted Acquisition, a certificate, in form and substance  reasonably satisfactory to the Administrative Agent, executed by an Authorized Officer of the  Borrower (A) certifying that (1) such Permitted Acquisition complies with the requirements of  this Agreement and (2) after giving effect to such Permitted Acquisition and any borrowings in  connection therewith, the Borrower believes in good faith that it will have sufficient availability  under the Aggregate Revolving Committed Amount to meet its ongoing working capital  requirements and (B) demonstrating compliance with clauses (b), (d) and (e)(i) of the definition  of the Permitted Acquisition.      (f) Updated Schedules.  Concurrently with or prior to the delivery of the financial  statements referred to in Sections 5.1(a) above, (i) an updated copy of Schedule 3.2 and  Schedule 3.9 if the Credit Parties or any of their Subsidiaries has formed or acquired a new  Subsidiary since the Closing Date or since such Schedule was last updated, as applicable and  (ii) an updated copy of Schedule 3.16 if the Credit Parties or any of their Subsidiaries has altered  or acquired any insurance policies since the Closing Date or since such Schedule was last  updated.  





 






  82  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section 5.2(d) (to the  extent any such documents are included in materials otherwise filed with the Securities and Exchange  Commission) may be delivered electronically and shall be deemed to have been delivered on the date  (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s Internet  website; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet  website, if any, to which each Lender and the Administrative Agent have access (whether a commercial,  third-party website or whether sponsored by the Administrative Agent); provided that the Borrower shall  deliver paper copies of such documents to the Administrative Agent or any Lender that requests the  Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by  the Administrative Agent or such Lender.    5.3 Notices.     Give notice to the Administrative Agent (which shall promptly transmit such notice to each  Lender) of:    (a) Defaults.  Promptly (but in any event within two (2) Business Days) after any  Credit Party knows thereof, the occurrence of any Default or Event of Default.    (b) Legal Proceedings.  Promptly, any litigation, or any investigation or proceeding  (including without limitation, any environmental or Governmental Authority proceeding) known  to any Credit Party, relating to the Borrower or any of its Subsidiaries which, if adversely  determined, would reasonably be expected to have a Material Adverse Effect.    (c) ERISA.  Promptly, on any Credit Party gaining knowledge of (i) the occurrence  of any Reportable Event with respect to any Single Employer Plan, (ii) a failure by any Credit  Party or any ERISA Affiliate to make any required contribution to a Single Employer Plan  required to meet the minimum funding standard set forth in ERISA and the Code with respect  thereto, (iii) the creation of any Lien on the assets of any Credit Party or any ERISA Affiliate in  favor of the PBGC (other than a Permitted Lien) or a Plan, or (iv) with respect to any  Multiemployer Plan, the assessment of any withdrawal liability against any Credit Party or any  ERISA Affiliate, or the termination, Reorganization or Insolvency of, any Multiemployer Plan;  and in each case in clauses (i) and (iv) above, such event or condition would reasonably be  expected to have a Material Adverse Effect.      (d) Guarantors.  Promptly after creating or acquiring any Domestic Subsidiary  required to be joined as a Guarantor in accordance with the terms of Section 5.8, notice of the  creation or acquisition of such Domestic Subsidiary.     (e) Other.  Promptly, any other development or event which a Responsible Officer  gains knowledge of which would reasonably be expected to have a Material Adverse Effect.    Each notice pursuant to this Section 5.3 shall be accompanied by a statement of an Authorized Officer  setting forth details of the occurrence referred to therein and stating what action the Borrower proposes to  take with respect thereto.    5.4 Maintenance of Existence; Compliance with Laws; Contractual Obligations.    (a) Subject to Section 6.4, each Credit Party will at all times preserve and keep in  full force and effect its and the corporate existence of each of its Subsidiaries (unless merged into  





 






  83  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  the Borrower or a Subsidiary) and all rights and franchises of itself and its Subsidiaries unless, in  the good faith judgment of the Borrower, the termination of or failure to preserve and keep in full  force and effect such corporate existence, right or franchise would not, individually or in the  aggregate, reasonably be expected to have a Material Adverse Effect.    (b) Comply with all Requirements of Law, ordinances or governmental rules or  regulations to which each of them is subject, including, without limitation, Environmental Laws,  ERISA-related Requirements of Law and Anti-Corruption Laws, and obtain and maintain in  effect all licenses, certificates, permits, franchises and other governmental authorizations  necessary to the ownership of their respective properties or to the conduct of their respective  businesses, in each case to the extent necessary to ensure that non-compliance with such laws,  ordinances or governmental rules or regulations or failures to obtain or maintain in effect such  licenses, certificates, permits, franchises and other governmental authorizations would not  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.    (c) Fully perform and satisfy all of its obligations under all of its contractual  obligations except to the extent that failure to perform and satisfy such obligations would not  reasonably be expected, in the aggregate, to have a Material Adverse Effect.    5.5 Maintenance of Property; Insurance.    (a) Maintain and keep, or cause to be maintained and kept, their respective properties  in good repair, working order and condition (other than ordinary wear and tear), so that the  business carried on in connection therewith may be properly conducted at all times; provided that  this Section 5.5 shall not prevent the Borrower or any Subsidiary from discontinuing the  operation and the maintenance of any of its properties if such discontinuance is desirable or  acceptable in the conduct of its business and the Borrower has concluded that such  discontinuance would not, individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect.    (b) Maintain, with financially sound and reputable insurers, insurance with respect to  their respective properties and businesses against such casualties and contingencies, of such  types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance,  if adequate reserves are maintained with respect thereto) as is customary in the case of entities of  established reputations engaged in the same or a similar business and similarly situated; and  furnish to the Administrative Agent, upon written request, full information as to the insurance  carried.    5.6 Inspection of Property; Books and Records; Discussions.     Keep proper books of records and account in which full, true and correct entries in conformity  with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its  businesses and activities; and permit, during regular business hours and upon reasonable notice by the  Administrative Agent or any Lender, the Administrative Agent or any such Lender to visit and inspect  any of its properties and examine and make abstracts (including photocopies) from any of its books and  records at any reasonable time, and to discuss the business, operations, properties and financial and other  condition of the Credit Parties and their Subsidiaries with officers and employees of the Credit Parties and  their Subsidiaries and with their independent certified public accountants.  The cost of the inspection  referred to in the preceding sentence shall be for the account of the Lenders unless an Event of Default  has occurred and is continuing, in which case the cost of such inspection shall be for the account of the  Borrower.  





 






  84  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    5.7 Use of Proceeds.     Use the Loans solely for the purposes provided in Section 3.10.    5.8 Additional Guarantors; Release of Guarantors.    (a) The Borrower shall promptly notify the Administrative Agent of the creation or  acquisition of any Domestic Subsidiary (and shall notify the Administrative Agent to the extent any  Immaterial Domestic Subsidiary becomes a Material Domestic Subsidiary), and shall cause each  Domestic Subsidiary (other than Immaterial Domestic Subsidiaries) to become a “Guarantor” hereunder  within thirty (30) days after such notice by (i) executing a Joinder Agreement and (ii) delivering such  other documentation as the Administrative Agent may reasonably request in connection with the  foregoing, including, without limitation, certified resolutions and other organizational and authorizing  documents of such Person and favorable opinions of counsel to such Person (which shall cover, among  other things, the legality, validity, binding effect and enforceability of the documentation referred to  above), all in form, content and scope reasonably satisfactory to the Administrative Agent.     (b) If at any time there are Domestic Subsidiaries of the Borrower which are classified as  Immaterial Domestic Subsidiaries but which collectively (i) generate more than 20% of the Consolidated  revenues of the Borrower and its Subsidiaries on a Pro Forma Basis or (ii) have total assets of equal to or  greater than 20% of the Consolidated Assets, then the Borrower shall promptly cause one or more of such  Immaterial Domestic Subsidiaries to comply with the provisions of Section 5.8(a), such that, after such  Subsidiaries become Guarantors hereunder, all Immaterial Domestic Subsidiaries that are not Guarantors  shall (A) generate not more than 20% of the Consolidated revenues of the Borrower and its Subsidiaries  in the aggregate and (B) have total assets of not more than 20% of Consolidated Assets.       (c) In addition to the foregoing requirements of this Section 5.8, the Borrower shall cause any  Subsidiary that guarantees the obligations of the Borrower under the Senior Notes (and which is not a  Guarantor) to promptly become a “Guarantor” hereunder by executing and delivering to the Administrative  Agent a Joinder Agreement and such other documentation as contemplated by Section 5.8(a) above.    (d) Promptly following the Borrower’s request, and without the need for any action by or  approval of any Lender, the Administrative Agent shall release any Guarantor from its obligations as a  Guarantor if at such time (i) such Guarantor (A) has been released, or will substantially concurrently with  such release, be released from its guaranty obligations under the Note Purchase Agreement and (B) is not  otherwise required to be a Guarantor pursuant to the requirements of this Section 5.8; or (ii) such  Guarantor ceases to be a Material Domestic Subsidiary other than by reason of one or more transactions  prohibited hereby.     5.9 Financial Covenants.    (a) Leverage Ratio.  On a Consolidated basis, maintain a Leverage Ratio as of the  end of each fiscal quarter of the Borrower of less than or equal to 3.50 to 1.0; provided, that,  following a Senior Note Event (to the extent the applicable Note Purchase Agreement includes a  corresponding Leverage Ratio Increase (as defined below) provision), in connection with any  Permitted Acquisition or series of Permitted Acquisitions during any twelve-month period  occurring after such Senior Note Event having aggregate consideration (including cash, cash  equivalents and other deferred payment obligations) in excess of $100,000,000 for such Permitted  Acquisition or series of Permitted Acquisitions occurring during any twelve-month period, the  Borrower may, at its election, in connection with such Permitted Acquisition or the last in a series  





 






  85  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  of Permitted Acquisitions and upon prior written notice to the Administrative Agent, increase the  required Leverage Ratio pursuant to this Section to a level of less than or equal to 4.00 to 1.00,  which such increase shall be applicable for the fiscal quarter in which such Permitted Acquisition  is consummated and the three (3) consecutive quarterly test periods thereafter (each, a “Leverage  Ratio Increase”); provided further that there shall be at least two (2) full fiscal quarters following  the cessation of each such Leverage Ratio Increase during which no Leverage Ratio Increase shall  then be in effect.    (b) Interest Coverage Ratio.  On a Consolidated basis, maintain an Interest Coverage  Ratio as of the end of each fiscal quarter of the Borrower of greater than or equal to 4.00 to 1.0;  provided, however, this Section 5.9(b) shall fall away, and no longer be applicable, following a  Senior Note Event to the extent a corresponding provision is not included in the applicable Note  Purchase Agreement.     5.10 Payment of Obligations.     File all income tax or similar tax returns required to be filed in any jurisdiction and to pay and  discharge all taxes shown to be due and payable on such returns and all other taxes, assessments,  governmental charges, or levies payable by any of them, to the extent such taxes and assessments have  become due and payable and before they have become delinquent; provided that neither the Borrower nor  any Subsidiary need pay any such tax or assessment if (a) the amount, applicability or validity thereof is  contested by the Borrower or such Subsidiary on a timely basis in good faith and in appropriate  proceedings, and the Borrower or a Subsidiary has established adequate reserves therefore in accordance  with GAAP on the books of the Borrower or such Subsidiary or (b) the nonpayment of all such taxes and  assessments in the aggregate would not reasonably be expected to have a Material Adverse Effect.    5.11 Environmental Laws.    (a) Except to the extent that the failure to do so would not reasonably be expected to  have a Material Adverse Effect, (i) comply in all material respects with and take commercially  reasonable steps to ensure compliance in all material respects by all tenants and subtenants, if  any, with, all applicable Environmental Laws and (ii) obtain and comply in all material respects  with and maintain, and take commercially reasonable steps to ensure that all tenants and  subtenants obtain and comply in all material respects with and maintain, any and all licenses,  approvals, notifications, registrations or permits required by applicable Environmental Laws.    (b) Except to the extent that the failure to do so would not reasonably be expected to  have a Material Adverse Effect, (i) conduct and complete all investigations, studies, sampling and  testing, and all remedial, removal and other actions required under Environmental Laws and  (ii) promptly comply in all material respects with all lawful orders and directives of all  Governmental Authorities regarding Environmental Laws.    (c) Defend, indemnify and hold harmless the Administrative Agent and the Lenders,  and their respective employees, agents, officers and directors and affiliates, from and against any  and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of  whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any  way relating to the violation of, noncompliance with or liability under, any Environmental Law  applicable to the operations of the Borrower or any of its Subsidiaries or their Properties, or any  orders, requirements or demands of Governmental Authorities related thereto, including, without  limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response  costs, court costs and litigation expenses, except to the extent that any of the foregoing arise out  





 






  86  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  of the gross negligence or willful misconduct of the party seeking indemnification therefor.  The  agreements in this paragraph shall survive repayment of the Credit Party Obligations and  termination of the Credit Documents.    5.12 Beneficial Ownership; Further Assurances.     The Credit Parties shall (a) notify the Administrative Agent and each Lender that previously  received a Beneficial Ownership Certification (or a certification that the Borrower qualifies for an express  exclusion to the “legal entity customer” definition under the Beneficial Ownership Regulation) of any  change in the information provided in the Beneficial Ownership Certification that would result in a  change to the list of beneficial owners identified therein (or, if applicable, the Borrower ceasing to fall  within an express exclusion to the definition of “legal entity customer” under the Beneficial Ownership  Regulation), (b) promptly upon the reasonable request of the Administrative Agent or any Lender,  provide the Administrative Agent or directly to such Lender, as the case may be, any information or  documentation requested by it for purposes of complying with the Beneficial Ownership Regulation and  (c) provide such information regarding the operations, business affairs and financial condition of the  Credit Parties and their Subsidiaries as the Administrative Agent or any Lender may reasonably request.    SECTION 6  NEGATIVE COVENANTS     The Credit Parties covenant and agree that on the Closing Date, and so long as this Agreement is  in effect and until the Commitments have been terminated, no Loans remain outstanding and all amounts  owing hereunder or under any other Credit Document or in connection herewith or therewith (other than  contingent indemnification obligations as to which no demand has been made in writing and other  obligations that have been Cash Collateralized) have been paid in full, the Credit Parties shall not and  shall not permit any Subsidiary to:    6.1 Indebtedness.     At any time, create, incur, assume or suffer to exist any Indebtedness, except:    (a) Indebtedness represented by the Credit Party Obligations;    (b) Indebtedness of the Borrower or any Subsidiary owing to the Borrower or any  other Subsidiary;     (c) Indebtedness existing as of the Closing Date and set forth on Schedule 6.1;    (d) Indebtedness of the Borrower and the Subsidiaries incurred after the Closing  Date consisting of Finance Leases or Indebtedness incurred to provide all or a portion of the  purchase price or cost of construction of an asset; provided that (i) such Indebtedness when  incurred shall not exceed the purchase price or cost of construction of such asset, (ii) no such  Indebtedness shall be refinanced for a principal amount in excess of the principal balance  outstanding thereon at the time of such refinancing and (iii) the total amount of all such  Indebtedness, when combined with the amount of all Indebtedness incurred pursuant to clause (k)  of this Section, shall not exceed $50,000,000 at any time outstanding;    (e) Indebtedness and obligations owing under (i) Bank Products and (ii) other  Hedging Agreements entered into in order to manage existing or anticipated interest rate,  exchange rate or commodity price risks and not for speculative purposes;  





 






  87  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    (f) Guaranty Obligations in respect of Indebtedness of a Credit Party to the extent  the incurrence or existence of such Indebtedness is not prohibited by this Section 6.1;     (g) Indebtedness of any Person (i) that is existing at the time such Person is acquired  by, or merged or consolidated with or into, the Borrower or a Subsidiary of the Borrower, and (ii)  that is not created in contemplation of such event; provided that such Indebtedness shall not  exceed $50,000,000 at any time outstanding;    (h) Indebtedness arising from (i) the endorsement of negotiable instruments for  deposit or collection or similar transactions in the ordinary course of business, or (ii) the honoring  by a bank or other financial institution of a check, draft or similar instrument inadvertently  (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course  of business;     (i) any refunding or refinancing of any Indebtedness referred to in this Section 6.1,  provided that any such refunding or refinancing does not increase the principal amount thereof;     (j) Indebtedness incurred under the (i) Initial Senior Notes and (ii) any additional  Senior Notes incurred after the Closing Date; provided that the Borrower shall have  demonstrated, to the reasonable satisfaction of the Administrative Agent, that the Credit Parties  are in pro forma compliance with the financial covenant calculations set forth in Section 5.9 after  giving effect to any such Indebtedness incurred under any Senior Notes after the Closing Date;     (k) other Indebtedness of the Subsidiaries in an aggregate amount not to exceed,  when combined with the amount of Indebtedness incurred pursuant to clause (d) of this section,  $75,000,000 at any time outstanding; and    (l) other Indebtedness of the Borrower so long as the Borrower is in pro forma  compliance with the financial covenants set forth in Section 5.9.    6.2 Liens.     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 hereafter  acquired, except for Permitted Liens.    6.3 Nature of Business.     Engage in any Material line of business substantially different from those lines of business  conducted by the Credit Parties and the Subsidiaries on the date hereof or any business substantially  related or incidental thereto; provided, however, this Section 6.3 shall fall away, and no longer be  applicable, following a Senior Note Event to the extent a corresponding provision is not included in the  applicable Note Purchase Agreement.    6.4 Mergers, Sale of Assets and Indebtedness of Subsidiaries    (a) Dissolve, liquidate or wind up its affairs, sell, transfer, lease or otherwise dispose  of its property or assets; provided that the following, without duplication, shall be expressly  permitted (including under Section 5.4):    





 






  88  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (i) the sale, transfer, lease or other disposition of inventory and materials in  the ordinary course of business;     (ii) the dissolution, liquidation or winding up of the affairs of any Subsidiary  (other than a Credit Party) so long as the property and assets of such Subsidiary available  for distribution are distributed to the Borrower or one or more of its Subsidiaries in  connection therewith;    (iii) the sale, transfer or other disposition of cash and Cash Equivalents;    (iv) (A) the disposition of property or assets as a direct result of a Recovery  Event or (B) the sale, lease, transfer or other disposition of machinery, parts and  equipment no longer used or useful in the conduct of the business of the Borrower or any  of its Subsidiaries;    (v) the sale, lease or transfer of property or assets between and among the  Borrower and its Subsidiaries; and      (vi) the sale, lease or transfer of property or assets not to exceed 15% of  Consolidated Net Tangible Assets (determined at the time of such sale, lease or transfer)  in the aggregate in any fiscal year; or      (b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of  related transactions) substantially all of the property or assets of any Person (other than in  connection with investments or acquisitions permitted pursuant to Section 6.5) or  (ii) consummate any transaction of merger or consolidation, except for (A) investments or  acquisitions permitted pursuant to Section 6.5, and (B) the merger or consolidation of the  Borrower and any of its Subsidiaries or by and between any of the Subsidiaries; provided that if  the Borrower is a party thereto, the Borrower will be the surviving corporation.      6.5 Advances, Investments and Loans.    At any time make or permit to remain outstanding any loan or advance to, or guarantee, endorse  or otherwise be or become contingently liable, directly or indirectly, in connection with the obligations,  stock or dividends of, or own, purchase or acquire any stock, obligations or Securities of, or any other  interest in, or make any capital contribution to (collectively, “Investments”), any Person, except that (each  of the following, collectively, “Permitted Investments”):    (a)          the Borrower may make or permit to remain outstanding Investments to or in  any Subsidiary and any Subsidiary may make or permit to remain outstanding Investments to or  in the Borrower or any other Subsidiary;    (b)          the Borrower and any Subsidiary may make Permitted Acquisitions;    (c)           the Borrower and its Subsidiaries may own, purchase or acquire cash and Cash  Equivalents;    (d)          the Borrower and its Subsidiaries may make loans and advances to employees  (other than any officer or director) of the Borrower or its Subsidiaries in an aggregate amount not  to exceed $5,000,000 at any time outstanding;    





 






  89  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (e)          the Borrower and its Subsidiaries may make loans to, and enter into Guaranty  Obligations for the account of, distributors in the ordinary course of business in an aggregate  amount not to exceed $60,000,000 at any time outstanding;     (f)           the Borrower and any Subsidiary may make Investments in an aggregate  amount at any time not to exceed $50,000,000 in any evidence of Indebtedness the interest on  which is exempt from federal income taxation under the Code, of issuers with long-term debt  ratings, at any date of determination, P-2 (or the equivalent thereof) or better by Moody’s, or A-2  (or the equivalent thereof) or better by S&P and/or auction rate preferred stock issued by a  corporation or association organized and existing under the laws of any State of the U.S. or the  District of Columbia, with a long-term debt rating, at any date of determination, of P-2 (or the  equivalent thereof) or better by Moody’s, or A-2 (or the equivalent thereof) or better by S&P;     (g)       Pearl City may make Investments in an aggregate amount not to exceed  $150,000,000 at any one time outstanding so long as such Investments are in accordance with the  investment policy of Pearl City as in effect at the time of each such Investment;     (h)          Investments permitted under Section 6.4;     (i)            guarantees permitted by Section 6.1(f); and    (j)           the Borrower and Subsidiaries may make or permit to remain outstanding any  Investment in any other Person, which is not otherwise included in the foregoing clauses (a)  through (i), inclusive, provided that the aggregate of such Investments shall not, at any time,  exceed 20% of Consolidated Net Tangible Assets determined at such time.   For the avoidance of  doubt, the Borrower and its Subsidiaries may make Investments (other than loans and Guaranty  Obligations) in distributors pursuant to this clause (j) in addition to the loans and Guaranty  Obligations permitted under clause (e) hereof.    Investments shall be valued at cost, less any return of capital thereon.    6.6 Transactions with Affiliates.     Enter into directly or indirectly any Material transaction or Material group of related transactions  (including without limitation the purchase, lease, sale or exchange of properties of any kind or the  rendering of any service) with any Affiliate (other than the Borrower or another Subsidiary or an  employee stock ownership plan for the benefit of employees of the Borrower or any Subsidiary), except  pursuant to the reasonable requirements of the Borrower’s or such Subsidiary’s business and upon fair  and reasonable terms no less favorable to the Borrower or such Subsidiary than would be obtainable in a  comparable arm’s-length transaction with a Person not an Affiliate or, if such transaction is not one which  by its nature could be obtained from any such Person, is on fair and reasonable terms.    6.7 Fiscal Year; Organizational Documents.     Neither change its fiscal year nor amend, modify or change its articles of incorporation (or  corporate charter or other similar organizational document) or bylaws (or other similar document) in any  manner materially adverse to the interests of the Lenders without the prior written consent of the  Administrative Agent.     





 






  90  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  6.8 Limitation on Restricted Actions.     Directly or indirectly, create or otherwise cause or suffer to exist or become effective any  encumbrance or restriction on the ability of any Subsidiary to (a) pay dividends or make any other  distributions to the Borrower on its Equity Interests or with respect to any other interest or participation  in, or measured by, its profits, (b) pay any Indebtedness or other obligation owed to the Borrower,  (c) make loans or advances to the Borrower, (d) sell, lease or transfer any of its properties or assets to the  Borrower, or (e) act as a guarantor of the Borrower pursuant to the Credit Documents or any renewals,  refinancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred  to in clauses (a) through (d) above) for (i) such encumbrances or restrictions existing under or by reason  of (A) this Agreement and the other Credit Documents, (B) applicable law, (C) any Permitted Lien or any  document or instrument governing any Permitted Lien (provided that any such restriction contained  therein relates only to the asset or assets subject to such Permitted Lien), (D) any agreement relating to  any Indebtedness issued by a Subsidiary on or prior to the date on which such Subsidiary became a  Subsidiary or was acquired by the Borrower (other than Indebtedness issued as consideration in, or to  provide all or any portion of the funds utilized to consummate, the transaction or series of related  transactions in contemplation of or pursuant to which such Person became a Subsidiary or was acquired  by the Borrower) and outstanding on such date, and (E) customary non-assignment provisions in leases  governing leasehold interests to the extent such provisions restrict the transfer of the lease, (ii) any  requirement that a Non-Wholly-Owned Subsidiary make dividend or other distribution to all owners of its  equity interests, including owners other than the Borrower or other Subsidiaries, in accordance with their  respective equity interests, (iii) a requirement that a Subsidiary give the holders of any Indebtedness of  such Subsidiary not more than thirty days prior written notice of its intention to pay a dividend to its  stockholders and (iv) (in respect of the matters referred to in clauses (a) and (d) above) restrictions on  sales, leases or transfers of all or substantially all of the assets of any Subsidiary that has guaranteed the  Borrower’s obligations under the Senior Notes during an event of default thereunder, and except (in  respect of the matters referred to in clause (e) above) for restrictions in the Note Purchase Agreement,  provided that the Note Purchase Agreement does not so restrict any Subsidiary that has guaranteed the  Borrower’s obligations under the Senior Notes.     6.9 Reserved.    6.10 Reserved.    6.11 No Further Negative Pledges.    Enter into, assume, become subject to, or permit to exist, any agreement prohibiting or otherwise  restricting the creation or assumption of any Lien upon its properties or assets, whether now owned or  hereafter acquired, in favor of the Administrative Agent (for the benefit of the Lenders) to secure the  Credit Party Obligations (provided that any restriction (a) on the amount of Indebtedness under this  Agreement and the other Credit Documents that can be secured shall not be deemed a restriction  prohibited by this Section 6.11 so long as the permitted amount of secured Indebtedness is equal to or  greater than the aggregate Commitments hereunder including the permitted amount of any Additional  Loans as then in effect when such restriction is entered into, (b) in the Note Purchase Agreement shall not  be deemed a restriction prohibited by this Section 6.11 if such Liens in favor of the Administrative Agent  shall be permitted thereunder on the condition that the Senior Notes be equally and ratably secured with  the Credit Party Obligations secured thereby pursuant to an agreement reasonably satisfactory to the  Required Holders (as defined in the Note Purchase Agreement) and (c) in the Note Purchase Agreement  or any other agreement evidencing Indebtedness permitted hereunder that conditions a Person’s ability to  encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability  





 






  91  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance  of specific assets.      SECTION 7  EVENTS OF DEFAULT    7.1 Events of Default.     An Event of Default shall exist upon the occurrence of any of the following specified events  (each an “Event of Default”):    (a) (i) The Borrower shall fail to pay any principal on any Loan when due in  accordance with the terms hereof; or (ii) the Borrower shall fail to reimburse the Issuing Lenders  for any LOC Obligations when due in accordance with the terms hereof; or (iii) the Borrower  shall fail to pay any interest on any Loan or any Fee or other amount payable hereunder when due  in accordance with the terms hereof and such failure shall continue unremedied for three (3)  Business Days (or any Guarantor shall fail to pay on the Guaranty in respect of any of the  foregoing or in respect of any other Guaranty Obligations thereunder within three (3) Business  Days); or    (b) Any representation or warranty made or deemed made herein or in any of the  other Credit Documents or which is contained in any certificate, document or financial or other  statement furnished at any time under or in connection with this Agreement shall prove to have  been incorrect, false or misleading in any material respect on or as of the date made or deemed  made; or    (c) (i) Any Credit Party shall fail to perform, comply with or observe any term,  covenant or agreement applicable to it contained in Sections 5.3(a), 5.4(a), 5.7, 5.9 or 5.13 or in  Section 6; or (ii) any Credit Party shall fail to perform, comply with or observe any covenant or  agreement contained in Section 5.1 and such failure shall continue unremedied for a period of  five (5) Business Days; or (iii) any Credit Party shall fail to comply with any other covenant  contained in this Agreement or the other Credit Documents (other than as described in Sections  7.1(a), 7.1(b), 7.1(c)(i) or 7.1(c)(ii) above), and in the event such breach or failure to comply is  capable of cure, is not cured within thirty (30) days of its occurrence; or      (d) Any Credit Party or any of its Subsidiaries shall (i) default in any payment of  principal of or interest on any Indebtedness (other than the Loans, Reimbursement Obligations  and the Guaranty) in a principal amount outstanding of at least $30,000,000 in the aggregate for  the Credit Parties and their Subsidiaries beyond the period of grace, if any, provided in the  instrument or agreement under which such Indebtedness was created or (ii) default in the  observance or performance of any other agreement or condition relating to any Indebtedness in a  principal amount outstanding of at least $30,000,000 in the aggregate for the Credit Parties or  their Subsidiaries or contained in any instrument or agreement evidencing, securing or relating  thereto, or any other event shall occur or condition exist, the effect of which default or other event  or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or  beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or  beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to  become due prior to its stated maturity; or    





 






  92  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (e) (i) Any Credit Party shall commence any case, proceeding or other action  (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to  bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief  entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking  reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or  other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee,  custodian, conservator or other similar official for it or for all or any substantial part of its assets,  or any Credit Party shall make a general assignment for the benefit of its creditors; or (ii) there  shall be commenced against any Credit Party any case, proceeding or other action of a nature  referred to in clause (i) above which (A) results in the entry of an order for relief or any such  adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period  of 60 consecutive days; or (iii) there shall be commenced against any Credit Party any case,  proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or  similar process against all or any substantial part of its assets which results in the entry of an  order for any such relief which shall not have been vacated, discharged, or stayed or bonded  pending appeal within sixty (60) days from the entry thereof; or (iv) any Credit Party shall take  any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of  the acts set forth in clauses (i), (ii), or (iii) above; or (v) any Credit Party shall generally not, or  shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or     (f) One or more judgments or decrees shall be entered against any Credit Party or  any of its Subsidiaries involving in the aggregate a liability (to the extent not paid when due or  covered by insurance) of $30,000,000 or more and all such judgments or decrees shall not have  been paid and satisfied, vacated, discharged, stayed or bonded pending appeal within forty- five (45) days from the entry thereof; or    (g) (i) Any Person shall engage in any non-exempt “prohibited transaction” (as  defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) the  determination that a Single Employer Plan or a Multiemployer Plan is considered an at risk plan  or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the  Code or Sections 303, 304 and 305 of ERISA or any Lien in favor of the PBGC or a Plan (other  than a Permitted Lien) shall arise on the assets of any Credit Party or any ERISA Affiliate, (iii) a  Reportable Event shall occur with respect to, or proceedings under Title IV of ERISA shall  commence to have a trustee appointed, or a trustee shall be appointed under Title IV of ERISA, to  administer or to terminate, any Single Employer Plan, which Reportable Event or commencement  of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders,  likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single  Employer Plan shall terminate for purposes of Title IV of ERISA, or (v) any Credit Party or any  ERISA Affiliate shall incur any liability in connection with a withdrawal from, or the Insolvency  or Reorganization of, any Multiemployer Plan; and in each case in clauses (i) through (v) above,  such event or condition, together with all other such events or conditions, if any, would  reasonably be expected to have a Material Adverse Effect; or      (h) There shall occur a Change of Control; or    (i) The Guaranty or any provision thereof shall cease to be in full force and effect or  any Guarantor or any Person acting by or on behalf of any Guarantor shall deny or disaffirm any  Guarantor’s obligations under the Guaranty; or    (j) This Agreement or any Credit Document shall fail to be in full force and effect or  to give the Administrative Agent and/or the Lenders the rights, powers and privileges purported  





 






  93  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  to be created thereby, or any Credit Party or any Person acting by or on behalf of any Credit Party  shall deny or disaffirm any Credit Party Obligation.    If a Default shall have occurred under the Credit Documents, then such Default will continue to  exist until it either is cured (to the extent specifically permitted) in accordance with the Credit Documents  or is otherwise expressly waived by Administrative Agent (with the approval of requisite Lenders (in their  sole and absolute discretion) as determined in accordance with Section 10.1); and once an Event of  Default occurs under the Credit Documents, then such Event of Default will continue to exist until it is  expressly waived by the requisite Lenders or by the Administrative Agent with the approval of the  requisite Lenders, as required hereunder in Section 10.1.    7.2 Acceleration; Remedies.     Upon the occurrence and during the continuance of an Event of Default, the Administrative  Agent may, or upon the request and direction of the Required Lenders shall, by written notice to the  Borrower take any of the following actions (including any combination of such actions):    (a) Termination of Commitments.  Declare the Commitments terminated whereupon  the Commitments shall be immediately terminated.    (b) Acceleration.  Declare the unpaid principal of and any accrued interest in respect  of the Credit Party Obligations (other than liabilities and obligations arising under Bank Products)  and any and all other indebtedness or obligations (including, without limitation, Fees) of any and  every kind owing by any Credit Party to the Administrative Agent and/or any of the Lenders  hereunder to be due and direct the Borrower to pay to the Administrative Agent cash collateral as  security for the LOC Obligations for subsequent drawings under then outstanding Letters of  Credit in an amount equal to 105% of the maximum amount which may be drawn under Letters  of Credit then outstanding, whereupon the same shall be immediately due and payable without  presentment, demand, protest or other notice of any kind, all of which are hereby waived by each  Credit Party.    (c) Enforcement of Rights.  Exercise any and all rights and remedies created and  existing under the Credit Documents, whether at law or in equity.    (d) Rights Under Applicable Law.  Exercise any and all rights and remedies  available to the Administrative Agent or the Lenders under applicable law.    Notwithstanding the foregoing, if a Bankruptcy Event shall occur, then the Commitments shall  automatically terminate and all Loans, all accrued interest in respect thereof, all accrued and unpaid Fees,  other indebtedness or obligations owing to the Administrative Agent and/or any of the Lenders hereunder  and cash collateral as security for the LOC Obligations for subsequent drawings under then outstanding  Letters of Credit an amount equal to 105% of the maximum amount which may be drawn under Letters of  Credit then outstanding, automatically shall immediately become due and payable without presentment,  demand, protest or the giving of any notice or other action by the Administrative Agent or the Lenders, all  of which are hereby waived by the Borrower.    7.3 Rescission of Acceleration.    Anything in Section 7.2 to the contrary notwithstanding, the Administrative Agent shall at the  direction of the Lenders, rescind and annul any acceleration pursuant to Section 7.2(b) by written  





 






  94  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  instrument filed with the Borrower, provided, however, that at the time such acceleration is so rescinded  and annulled:    (a) all past due interest and principal, if any, on the Obligations and all other sums  payable under this Agreement (except any principal and interest on any Obligations which has  become due and payable solely by reason of such acceleration) shall have been duly paid; and    (b) no other Event of Default shall have occurred and be continuing which shall not  have been waived in accordance with this Agreement.          SECTION 8  AGENCY PROVISIONS    8.1 Appointment and Authority.    Each of the Lenders hereby irrevocably appoints Wells Fargo to act on its behalf as the  Administrative Agent hereunder and under the other Credit Documents and authorizes the Administrative  Agent to take such actions on its behalf and to exercise such powers as are delegated to the  Administrative Agent by the terms hereof or thereof, together with such actions and powers as are  reasonably incidental thereto.  The provisions of this Section are solely for the benefit of the  Administrative Agent and the Lenders, and neither the 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 the  Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations  arising under agency doctrine of any applicable law. Instead such term is used as a matter of market  custom, and is intended to create or reflect only an administrative relationship between contracting  parties.    8.2 Nature of Duties.    Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers or other  agents 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 the  Administrative Agent or a Lender hereunder.  Without limiting the foregoing, none of the Lenders or  other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender.   Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons  so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.    The 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  the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of  its duties and exercise its rights and powers by or through their respective Related Parties.  The  exculpatory provisions of this Section shall apply to any such sub-agent and to the Related Parties of the  Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection  with the syndication of the credit facilities provided for herein as well as activities as Administrative  Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any  subagents except to the extent that a court of competent jurisdiction determines in a final and non  





 






  95  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in  the selection of such sub-agents.    8.3 Exculpatory Provisions.    The Administrative Agent shall not have any duties or obligations except those expressly set forth  herein and in the other Credit Documents, and its obligations hereunder shall be administrative in nature.   Without limiting the generality of the foregoing, the Administrative Agent:    (a) shall not be subject to any fiduciary or other implied duties, regardless of whether  a Default has occurred and is continuing;    (b) shall not have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated hereby or by  the other Credit Documents that the Administrative Agent is required to exercise as directed in  writing by the Required Lenders (or such other number or percentage of the Lenders as shall be  expressly provided for herein or in the other Credit Documents), provided that the Administrative  Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,  may expose the Administrative Agent to liability or that is contrary to any 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 effect a forfeiture, modification or  termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and    (c) shall not, except as expressly set forth herein and in the other Credit Documents,  have any duty to disclose, and shall not be liable for the failure to disclose, any information  relating to any Credit Party or any of its Affiliates that is communicated to or obtained by the  Person serving as the Administrative Agent or any of its Affiliates in any capacity.    The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the  consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as  shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the  circumstances as provided in Sections 9.1 and 7.2) or (ii) in the absence of its own gross negligence or  willful misconduct as determined by a court of competent jurisdiction by final and nonappealable  judgment.     The Administrative Agent shall 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 Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be  delivered to the Administrative Agent.    8.4 Reliance by Administrative Agent.    The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for  relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing  (including any electronic message, Internet or intranet website posting or other distribution) believed by it  to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The  





 






  96  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  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 of a Letter  of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lenders, the  Administrative Agent may presume that such condition is satisfactory to such Lender or the Issuing  Lenders unless the Administrative Agent shall have received notice to the contrary from such Lender or  the Issuing Lenders prior to the making of such Loan or the issuance of such Letter of Credit.  The  Administrative Agent may consult with legal counsel (who may be counsel for the 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.    8.5 Notice of Default.    The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of  any Default or Event of Default hereunder unless the Administrative Agent has received written notice  from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default  and stating that such notice is a “notice of default”.  In the event that the Administrative Agent receives  such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders.  The  Administrative Agent shall take such action with respect to such Default or Event of Default as shall be  directed by the Required Lenders; provided, however, that unless and until the Administrative Agent shall  have received such directions, the Administrative Agent may (but shall not be obligated to) take such  action, or refrain from taking such action, with respect to such Default or Event of Default as it shall  deem advisable in the best interests of the Lenders except to the extent that this Agreement expressly  requires that such action be taken, or not taken, only with the consent or upon the authorization of the  Required Lenders, or all of the Lenders, as the case may be.    8.6 Non-Reliance on Administrative Agent and Other Lenders.    Each Lender expressly acknowledges that neither the Administrative Agent nor any of its  officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representation or  warranty to it and that no act by the Administrative Agent hereinafter taken, including any review of the  affairs of any Credit Party, shall be deemed to constitute any representation or warranty by the  Administrative Agent to any Lender.  Each Lender acknowledges that it has, independently and without  reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on  such documents and information as it has deemed appropriate, made its own credit analysis and decision  to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without  reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on  such documents and information as it shall from time to time deem appropriate, continue to make 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.    8.7 Indemnification.    The Lenders agree to indemnify each of the Administrative Agent, the Issuing Lenders, and the  Swingline Lender in its capacity hereunder and its Affiliates and their respective officers, directors, agents  and employees (to the extent not reimbursed by the Credit Parties and without limiting the obligation of  the Credit Parties to do so), ratably according to their respective Commitment Percentages in effect on the  date on which indemnification is sought under this Section, from and against any and all liabilities,  obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any  kind whatsoever which may at any time (including, without limitation, at any time following the payment  of the Credit Party Obligations) be imposed on, incurred by or asserted against any such indemnitee in  





 






  97  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  any way relating to or arising out of any Credit Document or any documents contemplated by or referred  to herein or therein or the Transactions or any action taken or omitted by any such indemnitee under or in  connection with any of the foregoing; provided, however, that no Lender shall be liable for the payment  of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,  expenses or disbursements to the extent resulting from such indemnitee’s gross negligence or willful  misconduct, as determined by a court of competent jurisdiction.  The agreements in this Section shall  survive the termination of this Agreement and payment of the Credit Party Obligations, any  Reimbursement Obligation and all other amounts payable hereunder.    8.8 Administrative Agent in Its Individual Capacity.    The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in its capacity as a Lender as any other Lender and may exercise the same as though it were not the  Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or  unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder  in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own  securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any  kind of business with the Credit Parties or any Subsidiary or other Affiliate thereof as if such Person were  not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.    8.9 Successor Administrative Agent.    The Administrative Agent may at any time give notice of its resignation to the Lenders, the  Issuing Lenders and the Borrower.  If the Person serving as Administrative Agent is a Defaulting Lender  pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by  applicable law, by notice in writing to the Borrower and such Person remove such Person as  Administrative Agent.  Upon delivery of any such notice of resignation or removal, the Required Lenders  shall have the right, in consultation with the Borrower, to appoint a successor, or an Affiliate of any such  bank.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted  such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its  resignation, then (a) in the case of a resignation, the retiring Administrative Agent may on behalf of the  Lenders and the Issuing Lenders, appoint a successor Administrative Agent meeting the qualifications set  forth above provided that if the Administrative Agent shall notify the Borrower and the Lenders that no  qualifying Person has accepted such appointment, then such resignation shall nonetheless become  effective in accordance with such notice, and (b) in the case of a removal, such removal shall nonetheless  become effective in accordance with such notice 30 days after the delivery of the notice of removal.   Upon the effectiveness of any resignation or removal (a) the retiring Administrative Agent shall be  discharged from its duties and obligations hereunder and under the other Credit Documents and (b) all  payments, communications and determinations provided to be made by, to or through the Administrative  Agent shall instead be made by or to each Lender and the Issuing Lenders directly, until such time as the  Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph.   Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor  shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or  retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its  duties and obligations hereunder or under the other Credit Documents (if not already discharged  therefrom as provided above in this paragraph).  The fees payable by the Borrower to a successor  Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed  between the Borrower and such successor.  After the retiring Administrative Agent’s resignation or  removal hereunder and under the other Credit Documents, the provisions of this Section and Section 10.5  shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their  





 






  98  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the  retiring Administrative Agent was acting as Administrative Agent.    Any resignation or removal by Wells Fargo as Administrative Agent pursuant to this Section shall  also constitute its resignation or removal as an Issuing Lender and Swingline Lender.  Upon the  acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall  succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing  Lender and Swingline Lender, (b) the retiring Issuing Lender and Swingline Lender shall be discharged  from all of their respective duties and obligations hereunder or under the other Credit Documents, and  (c) the successor Issuing Lender 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 the retiring Issuing  Lender to effectively assume the obligations of the retiring Issuing Lender with respect to such Letters of  Credit.    8.10 Guaranty Matters.    (a) The Lenders and the Bank Product Providers irrevocably authorize and direct the  Administrative Agent to release any Guarantor from its obligations under the applicable Guaranty  if such Person ceases to be a Guarantor as a result of a transaction permitted hereunder.    (b) In connection with a release pursuant to this Section, the Administrative Agent  shall promptly execute and deliver to the applicable Credit Party, at such Credit Party’s expense,  all documents that the applicable Credit Party shall reasonably request to evidence such  termination or release.  Upon request by the Administrative Agent at any time, the Required  Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor  from its obligations under the Guaranty pursuant to this Section.      8.11 Bank Products.    No Bank Product Provider that obtains the benefits of Sections 2.12 and 7.2 or any Guaranty by  virtue of the terms of this Agreement shall have any right to notice of any action or to consent to, direct or  object to any action hereunder or under any other Credit Document other than in its capacity as a Lender  and, in such case, only to the extent expressly provided in the Credit Documents.  The Administrative  Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been  made with respect to, Credit Party Obligations arising under Bank Products unless the Administrative  Agent has received written notice of such Credit Party Obligations, together with such supporting  documentation as the Administrative Agent may request, from the applicable Bank Product Provider.     8.12 Erroneous Payments.    (a) Each Lender, each Issuing Lender, each Bank Product Provider and any other party  hereto hereby severally agrees that if (i) the Administrative Agent notifies (which such notice shall be  conclusive absent manifest error) such Lender or Issuing Lender or any Bank Product Providers (or the  Lender Affiliate of a Bank Product Provider) or any other Person that has received funds from the  Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender, Issuing  Lender or Bank Product Provider (each such recipient, a “Payment Recipient”) that the Administrative  Agent has determined in its sole discretion that any funds received by such Payment Recipient were  erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient  (whether or not known to such Payment Recipient) or (ii) any Payment Recipient receives any payment  from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a  different date from, that specified in a notice of payment, prepayment or repayment sent by the  





 






  99  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as  applicable, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment  sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or  repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted or  received in error or by mistake (in whole or in part) then, in each case, an error in payment shall be  presumed to have been made (any such amounts specified in clauses (i) or (ii) of this Section 8.12(a),  whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or  otherwise; individually and collectively, an “Erroneous Payment”), then, in each case, such Payment  Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous Payment;  provided that nothing in this Section shall require the Administrative Agent to provide any of the notices  specified in clauses (i) or (ii) above. Each Payment Recipient agrees that it shall not assert any right or  claim to any Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off  or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the  return of any Erroneous Payments, including without limitation waiver of any defense based on  “discharge for value” or any similar doctrine.   (b) Without limiting the immediately preceding clause (a), each Payment Recipient agrees  that, in the case of clause (a)(ii) above, it shall promptly notify the Administrative Agent in writing of  such occurrence.  (c) In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all  times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient  and held in trust for the benefit of the Administrative Agent, and upon demand from the Administrative  Agent such Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous  Payment on its behalf to), promptly, but in all events no later than one Business Day thereafter, return to  the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which  such a demand was made in Same Day Funds and in the currency so received, together with interest  thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof)  was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent at  the Overnight Rate.  (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the  Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance  with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of a  Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return  Deficiency”), then at the sole discretion of the Administrative Agent and upon the Administrative Agent’s  written notice to such Lender (i) such Lender shall be deemed to have made a cashless assignment of the  full face amount of the portion of its Loans (but not its Commitments) of the relevant Class with respect  to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) to the  Administrative Agent or, at the option of the Administrative Agent, the Administrative Agent’s applicable  lending affiliate in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser  amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments)  of the Erroneous Payment  Impacted Class, the “Erroneous Payment Deficiency Assignment”) plus any  accrued and unpaid interest on such assigned amount, without further consent or approval of any party  hereto and without any payment by the Administrative Agent or its applicable lending affiliate as the  assignee of such Erroneous Payment Deficiency Assignment.  The parties hereto acknowledge and agree  that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any  payment or other consideration paid by the applicable assignee or received by the assignor, (2) the  provisions of this clause (d) shall govern in the event of any conflict with the terms and conditions of  Section 10.6 and (3) the Administrative Agent may reflect such assignments in the Register without  further consent or action by any other Person.  





 






  100  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion  thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or  portion thereof) for any reason, the Administrative Agent (1) shall be subrogated to all the rights of such  Payment Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all  amounts at any time owing to such Payment Recipient under any Credit Document, or otherwise payable  or distributable by the Administrative Agent to such Payment Recipient from any source, against any  amount due to the Administrative Agent under this Section 8.12 or under the indemnification provisions  of this Agreement, (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for the  purpose of this Agreement be treated as a payment, prepayment, repayment, discharge or other  satisfaction of any Obligations owed by the Borrower or any other Credit Party, except, in each case, to  the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment  that is, comprised of funds received by the Administrative Agent from the Borrower or any other Credit  Party for the purpose of making a payment on the Obligations and (z) to the extent that an Erroneous  Payment was in any way or at any time credited as payment or satisfaction of any of the Obligations, the  Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case  may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had  never been received.  (f) Each party’s obligations under this Section 8.12 shall survive the resignation or  replacement of the Administrative Agent or any transfer of right or obligations by, or the replacement of,  a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all  Obligations (or any portion thereof) under any Credit Document.  (g) Nothing in this Section 8.12 will constitute a waiver or release of any claim of any party  hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.    SECTION 9  GUARANTY    9.1 The Guaranty.     To induce the Lenders to enter into this Agreement and any Bank Product Provider to enter into  any Bank Product and to extend credit hereunder and thereunder and in recognition of the direct benefits  to be received by the Guarantors from the Extensions of Credit hereunder and any Bank Product, each of  the Guarantors hereby agrees with the Administrative Agent and the Lenders as follows:  the Guarantor  hereby unconditionally and irrevocably jointly and severally guarantees as primary obligor and not  merely as surety the full and prompt payment when due, whether upon maturity, by acceleration or  otherwise, of any and all Credit Party Obligations.  If any or all of such indebtedness becomes due and  payable hereunder or under any Bank Product with a Bank Product Provider, each Guarantor  unconditionally promises to pay such indebtedness to the Administrative Agent, the Lenders, the Bank  Product Providers, or their respective order, or demand, together with any and all reasonable expenses  which may be incurred by the Administrative Agent, the Lenders or the Bank Product Providers in  collecting any of the Credit Party Obligations.  The word “indebtedness” is used in this Section in its most  comprehensive sense and includes any and all advances, debts, obligations and liabilities of the Borrower  and the Guarantors under the Credit Documents, including specifically all Credit Party Obligations,  arising in connection with this Agreement, the other Credit Documents or Bank Product with a Bank  Product Provider, in each case, heretofore, now, or hereafter made, incurred or created, whether  voluntarily or involuntarily, absolute or contingent, liquidated or unliquidated, determined or  undetermined, whether or not such indebtedness is from time to time reduced, or extinguished and  thereafter increased or incurred, whether the Borrower and the Guarantors may be liable individually or  





 






  101  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  jointly with others, whether or not recovery upon such indebtedness may be or hereafter become barred  by any statute of limitations, and whether or not such indebtedness may be or hereafter become otherwise  unenforceable.     Notwithstanding any provision to the contrary contained herein or in any other of the Credit  Documents, to the extent the obligations of a Guarantor shall be adjudicated to be invalid or  unenforceable for any reason (including, without limitation, because of any applicable law relating to  fraudulent conveyances or transfers) then the obligations of each such Guarantor hereunder shall be  limited to the maximum amount that is permissible under applicable law (including, without limitation,  the Bankruptcy Code or its non-U.S. equivalent).    9.2 Bankruptcy.     Additionally, each of the Guarantors unconditionally and irrevocably guarantees jointly and  severally the payment of any and all Credit Party Obligations of the Borrower to the Lenders and any  Bank Product Provider whether or not due or payable by the Borrower upon the occurrence of a  Bankruptcy Event as applicable to the Borrower or any Subsidiaries of the Borrower, and unconditionally  promises to pay such Credit Party Obligations to the Administrative Agent for the account of the Lenders  and to any such Bank Product Provider, or order, on demand, in lawful money of the United States.  Each  of the Guarantors further agrees that to the extent that the Borrower or a Guarantor shall make a payment  or a transfer of an interest in any property to the Administrative Agent, any Lender or any Bank Product  Provider, which payment or transfer or any part thereof is subsequently invalidated, declared to be  fraudulent or preferential, or otherwise is avoided, and/or required to be repaid to the Borrower or a  Guarantor, the estate of the Borrower or a Guarantor, a trustee, receiver or any other party under any  bankruptcy law, state or federal law, common law or other applicable law or equitable cause, then to the  extent of such avoidance or repayment, the obligation or part thereof intended to be satisfied shall be  revived and continued in full force and effect as if said payment had not been made.    9.3 Nature of Liability.     The liability of each Guarantor hereunder is exclusive and independent of any security for or  other guaranty of the Credit Party Obligations of the Borrower whether executed by any such Guarantor,  any other guarantor or by any other party, and no Guarantor’s liability hereunder shall be affected or  impaired by (a) any direction as to application of payment by the Borrower or by any other party, (b) any  other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party  as to the Credit Party Obligations of the Borrower, (c) any payment on or in reduction of any such other  guaranty or undertaking, (d) any dissolution, termination or increase, decrease or change in personnel by  the Borrower, or (e) any payment made to the Administrative Agent, the Lenders or any Bank Product  Provider on the Credit Party Obligations that the Administrative Agent, such Lenders or such Bank  Product Provider repay the Borrower pursuant to court order in any bankruptcy, reorganization,  arrangement, moratorium or other debtor relief proceeding, and each of the Guarantors waives any right  to the deferral or modification of its obligations hereunder by reason of any such proceeding.    9.4 Independent Obligation.     The obligations of each Guarantor hereunder are independent of the obligations of any other  guarantor or the Borrower, and a separate action or actions may be brought and prosecuted against each  Guarantor whether or not action is brought against any other guarantor or the Borrower and whether or  not any other Guarantor or the Borrower is joined in any such action or actions.    





 






  102  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  9.5 Authorization.     Each of the Guarantors authorizes the Administrative Agent, each Lender and each Bank Product  Provider without notice or demand (except as shall be required by applicable law and cannot be waived),  and without affecting or impairing its liability hereunder, from time to time to (a) renew, compromise,  extend, increase, accelerate or otherwise change the time for payment of, or otherwise change the terms of  the Credit Party Obligations or any part thereof in accordance with this Agreement and any Bank Product,  as applicable, including any increase or decrease of the rate of interest thereon, (b) take and hold security  from any Guarantor or any other party for the payment of this Guaranty or the Credit Party Obligations  and exchange, enforce waive and release any such security, (c) apply such security and direct the order or  manner of sale thereof as the Administrative Agent and the Lenders in their discretion may determine and  (d) release or substitute any one or more endorsers, Guarantors, the Borrower or other obligors.    9.6 Reliance.     It is not necessary for the Administrative Agent, the Lenders or any Bank Product Providers to  inquire into the capacity or powers of the Borrower or the officers, directors, members, partners or agents  acting or purporting to act on its behalf, and any indebtedness made or created in reliance upon the  professed exercise of such powers shall be guaranteed hereunder.    9.7 Waiver.    (a) Each of the Guarantors waives any right (except as shall be required by  applicable law and cannot be waived) to require the Administrative Agent, any Lender or any  Bank Product Provider to (i) proceed against the Borrower, any other guarantor or any other  party, (ii) proceed against or exhaust any security held from the Borrower, any other guarantor or  any other party, or (iii) pursue any other remedy in the Administrative Agent’s, any Lender’s or  any Bank Product Provider’s power whatsoever.  Each of the Guarantors waives any defense  based on or arising out of any defense of the Borrower, any other guarantor or any other party  other than payment in full of the Credit Party Obligations, including without limitation any  defense based on or arising out of the disability of the Borrower, any other guarantor or any other  party, or the unenforceability of the Credit Party Obligations or any part thereof from any cause,  or the cessation from any cause of the liability of the Borrower other than payment in full of the  Credit Party Obligations.  The Administrative Agent or any of the Lenders may, at their election,  foreclose on any security held by the Administrative Agent or a Lender by one or more judicial or  nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the  extent such sale is permitted by applicable law), or exercise any other right or remedy the  Administrative Agent and any Lender may have against the Borrower or any other party, or any  security, without affecting or impairing in any way the liability of any Guarantor hereunder  except to the extent the Credit Party Obligations have been paid in full.  Each of the Guarantors,  to the extent permitted by law, waives any defense arising out of any such election by the  Administrative Agent and each of the Lenders, even though such election operates to impair or  extinguish any right of reimbursement or subrogation or other right or remedy of the Guarantors  against the Borrower or any other party or any security.    (b) Each of the Guarantors waives all presentments, demands for performance,  protests and notices, including without limitation notices of nonperformance, notice of protest,  notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence, creation  or incurring of new or additional Credit Party Obligations.  Each Guarantor assumes all  responsibility for being and keeping itself informed of the Borrower’s financial condition and  assets, and of all other circumstances bearing upon the risk of nonpayment of the Credit Party  





 






  103  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Obligations and the nature, scope and extent of the risks which such Guarantor assumes and  incurs hereunder, and agrees that neither the Administrative Agent nor any Lender shall have any  duty to advise such Guarantor of information known to it regarding such circumstances or risks.    (c) Each of the Guarantors hereby agrees it will not exercise any rights of  subrogation which it may at any time otherwise have as a result of this Guaranty (whether  contractual, under Section 509 of the Bankruptcy Code, or otherwise) to the claims of the Lenders  or the Bank Product Provider against the Borrower or any other guarantor of the Credit Party  Obligations of the Borrower owing to the Lenders or such Bank Product Provider (collectively,  the “Other Parties”) and all contractual, statutory or common law rights of reimbursement,  contribution or indemnity from any Other Party which it may at any time otherwise have as a  result of this Guaranty until such time as the Credit Party Obligations shall have been paid in full,  no Credit Document or Bank Product with a Bank Product Provider remains in effect and the  Commitments have been terminated.  Each of the Guarantors hereby further agrees not to  exercise any right to enforce any other remedy which the Administrative Agent, the Lenders or  any Bank Product Provider now have or may hereafter have against any Other Party, any endorser  or any other guarantor of all or any part of the Credit Party Obligations of the Borrower and any  benefit of, and any right to participate in, any security or collateral given to or for the benefit of  the Lenders and/or the Bank Product Providers to secure payment of the Credit Party Obligations  of the Borrower until such time as the Credit Party Obligations shall have been paid in full, no  Credit Document or Bank Product with a Bank Product Provider remains in effect and the  Commitments have been terminated.    9.8 Limitation on Enforcement.     The Lenders and the Bank Product Providers agree that this Guaranty may be enforced only by  the action of the Administrative Agent acting upon the instructions of the Required Lenders or any such  Bank Product Provider (only with respect to obligations under the applicable Bank Product entered into  with such Bank Product Provider) and that no Lender or Bank Product Provider shall have any right  individually to seek to enforce or to enforce this Guaranty, it being understood and agreed that such rights  and remedies may be exercised by the Administrative Agent for the benefit of the Lenders under the  terms of this Agreement and for the benefit of any Bank Product Provider under any Bank Product  provided by such Bank Product Provider.  The Lenders and the Bank Product Providers further agree that  this Guaranty may not be enforced against any director, officer, employee or stockholder of the  Guarantors.    9.9 Confirmation of Payment.     The Administrative Agent and the Lenders will, upon request after payment of the Credit Party  Obligations under the Credit Documents which are the subject of this Guaranty and termination of the  Commitments relating thereto, confirm to the Borrower, the Guarantors or any other Person that the  Credit Party Obligations under the Credit Documents have been paid in full and the Commitments  relating thereto terminated, subject to the provisions of Section 9.2.    9.10 Keepwell.     Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and  irrevocably undertakes to provide such funds or other support as may be needed from time to time by  each other Credit Party to honor all of its obligations under this Guaranty in respect of Swap Obligations  (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 9.10 for the  maximum amount of such liability that can be hereby incurred without rendering its obligations under this  





 






  104  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Section 9.10, or otherwise under this Guaranty, voidable under applicable law relating to fraudulent  conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified  ECP Guarantor under this Section shall remain in full force and effect until a discharge in full of the  Credit Party Obligations. Each Qualified ECP Guarantor intends that this Section 9.10 constitute, and this  Section 9.10 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of  each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.      SECTION 10  MISCELLANEOUS    10.1 Amendments and Waivers.     Neither this Agreement, nor any of the other Credit Documents, nor any terms hereof or thereof  may be amended, supplemented, waived or modified except in accordance with the provisions of this  Section.  The Required Lenders may, or, with the written consent of the Required Lenders, the  Administrative Agent may, from time to time, (a) enter into with the Borrower written amendments,  supplements or modifications hereto and to the other Credit Documents for the purpose of adding any  provisions to this Agreement or the other Credit Documents or changing in any manner the rights of the  Lenders or of the Borrower hereunder or thereunder or (b) waive, on such terms and conditions as the  Required Lenders may specify in such instrument, any of the requirements of this Agreement or the other  Credit Documents or any Default or Event of Default and its consequences; provided, however, that,  subject to Section 7.3, no such waiver and no such amendment, waiver, supplement, modification or  release shall:    (i) reduce the amount or extend the scheduled date of maturity of any Loan  or Note or any installment thereon, or reduce the stated rate of any interest, fee or other  amounts payable hereunder (except in connection with a waiver of interest at the  increased post-default rate) or extend the scheduled date of any payment thereof or  increase the amount or extend the expiration date of any Lender’s Commitment, in each  case without the written consent of each Lender directly affected thereby; or     (ii) amend, modify or waive any provision of this Section 10.1 or reduce the  percentage specified in the definition of Required Lenders, without the written consent of  all the Lenders; or     (iii) amend, modify or waive any provision of Section 9 without the written  consent of the then Administrative Agent; or    (iv) release all or substantially all of the Guarantors from their obligations  under the Guaranty, without the written consent of all the Lenders; or    (v) amend, modify or waive any provision of the Credit Documents  requiring consent, approval or request of the Required Lenders or all Lenders, without the  written consent of the Required Lenders or of all Lenders as appropriate; or    (vi) amend or modify the definition of Credit Party Obligations to delete or  exclude any obligation or liability described therein without the written consent of each  Lender and each Bank Product Provider directly affected thereby; or    





 






  105  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (vii) amend, modify or waive the order in which Credit Party Obligations are  paid, the pro rata borrowing of Loans, the pro rata reduction of Commitments or the pro  rata sharing of payments in Section 2.12(a), Section 2.12(b) or Section 10.7, in each case,  without the written consent of each Lender and each Bank Product Provider directly  affected thereby; or    (viii) subordinate any of the Obligations in right of payment or otherwise  adversely affect the priority of payment of any of such Obligations without the consent of  each Lender;    provided, further, that no amendment, waiver or consent affecting the rights or duties of the  Administrative Agent under any Credit Document shall in any event be effective, unless in writing and  signed by the Administrative Agent in addition to the Lenders required hereinabove to take such action;  provided, further, that no amendment, waiver or consent shall, unless in writing and signed by an Issuing  Lender in addition to the Lenders required above, affect the rights or duties of such Issuing Lender under  this Agreement or any LOC Document relating to any Letter of Credit issued or to be issued by it.       Any such waiver, any such amendment, supplement or modification and any such release shall  apply equally to each of the Lenders and shall be binding upon the Borrower, the Lenders, the other  Credit Parties, the Administrative Agent and all future Lenders.  In the case of any waiver, the Borrower,  the other Credit Parties, the Lenders and the Administrative Agent shall be restored to their former  position and rights hereunder and under the outstanding Loans and Notes and other Credit Documents,  and any Default or Event of Default permanently waived shall be deemed to be cured and not continuing;  but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any  right consequent thereon.       The Borrower and the Lenders hereby authorize the Administrative Agent to modify this  Agreement by unilaterally amending or supplementing Exhibit 2.1(a) from time to time in the manner  requested by the Borrower, the Administrative Agent or any Lender in order to reflect any assignments or  transfers of the Loans as provided for hereunder; provided further, however, that the Administrative  Agent shall promptly deliver a copy of any such modification to the Borrower and each Lender.    Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set  forth above, (A) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan  that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the  Bankruptcy Code supersedes the unanimous consent provisions set forth herein, (B) the Required Lenders  may consent to allow a Credit Party to use cash collateral in the context of a bankruptcy or insolvency  proceeding, (C) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver  or consent hereunder, except (x) that the Commitment of such Lender may not be increased or extended  without the consent of such Lender and (y) to the extent such amendment, waiver or consent is of the type  contemplated by clauses (i)-(vii) above and such Defaulting Lender is impacted by such amendment, waiver  or consent more than the other Lenders and (D) the Administrative Agent may, without the consent of any  Lender, enter into amendments or modifications to this Agreement or any of the other Credit Documents or to  enter into additional Credit Documents as the Administrative Agent reasonably deems appropriate in order to  implement any Benchmark Replacement or otherwise effectuate the terms of Section 2.14(b) in accordance  with the terms of Section 2.14(b).     The Borrower shall be permitted to replace with an Eligible Assignee acceptable to the  Administrative Agent any Lender (other than Wells Fargo) that fails to consent to any proposed  amendment, modification, termination, waiver or consent with respect to any provision hereof or of any  other Credit Document that requires the unanimous approval of all of the Lenders, the approval of all of  





 






  106  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  the Lenders affected thereby or the approval of a class of Lenders, in each case in accordance with the  terms of this Section 10.1, so long as the consent of the Required Lenders shall have been obtained with  respect to such amendment, modification, termination, waiver or consent; provided that (1) such  replacement does not conflict with any Requirement of Law, (2) the replacement Eligible Assignee shall  purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of  replacement, (3) the replacement Eligible Assignee shall approve the proposed amendment, modification,  termination, waiver or consent, (4) the Borrower shall be liable to such replaced Lender under  Section 2.17 if any SOFR Loan owing to such replaced Lender shall be purchased other than on the last  day of the Interest Period relating thereto, (5) the replaced Lender shall be obligated to make such  replacement in accordance with the provisions of Section 10.6 (provided that the Borrower shall be  obligated to pay the registration and processing fee referred to therein), (6) until such time as such  replacement shall be consummated, the Borrower shall pay to the replaced Lender all additional amounts  (if any) required pursuant to Section 2.15, 2.16 or 2.18, as the case may be, (7) the Borrower provides at  least three (3) Business Days’ prior notice to such replaced Lender, and (8) any such replacement shall  not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other  Lender shall have against the replaced Lender.  If any replaced Lender fails to execute the agreements  required under Section 10.6 in connection with an assignment pursuant to this Section 10.1, the Borrower  may, upon two (2) Business Days’ prior notice to such replaced Lender, execute such agreements on  behalf of such replaced Lender.  A Lender shall not be required to be replaced if, prior thereto, as a result  of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such  replacement cease to apply.    For the avoidance of doubt and notwithstanding any provision to the contrary contained in this  Section 10.1, this Agreement may be amended (or amended and restated) (a) as provided in Section 2.14  and 10.27 or (b) with the written consent of the Credit Parties and the Administrative Agent in accordance  with Section 2.5. In addition, notwithstanding anything in this Agreement to the contrary, each Lender  hereby irrevocably authorizes the Administrative Agent on its behalf, and without further consent of any  Lender (but with the consent of the Borrower), following a Senior Note Event to enter into amendments  or modifications to this Agreement as the Administrative Agent reasonably deems appropriate in order to  implement any changes to this Agreement specified herein that result from the occurrence of such Senior  Note Event.      10.2 Notices.    (a) Notices Generally.  Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all  notices and other communications provided for herein shall be in writing and shall be delivered  by hand or overnight courier service, mailed by certified or registered mail or sent via electronic  delivery as follows:      if to the Borrower:        HNI Corporation      600 East Second Street   Muscatine, IA 52761      Attention: Marshall Bridges,   Senior Vice President and Chief Financial Officer      Telephone:  (563) 272-7344  Email:   bridgesm@hnicorp.com    





 






  107  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18     with a copy to:        HNI Corporation      600 East Second Street   Muscatine, IA 52761  Attention: General Counsel      Telephone: (563) 272-7123  Email:   bradfords@hnicorp.com       if to the Administrative Agent:        Wells Fargo Bank, National Association  1525 W WT Harris Blvd.  MAC D1109-019  Charlotte, North Carolina  28262  Attention:      Syndication Agency Services  Telephone:     (704) 590-2713  Telecopy:       (704) 590-3481  Email: Agencyservices.requests@wellsfargo.com    with a copy to:      Wells Fargo Bank, National Association  550 S Tryon Street, 3rd floor   Charlotte, NC 28202   MAC D1086-031   Attention: Brett Wise  Telephone:  (704) 715-8846   Email:  brett.wise@wellsfargo.com    if to a Lender, to it at its address (or telecopier number) set forth in its Administrative  Questionnaire.    (b) Notices and other communications to the Lenders or the Administrative Agent  hereunder may be delivered or furnished by electronic communication (including e-mail and  Internet or intranet websites) pursuant to procedures approved by the Administrative Agent;  provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2 if such  Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving  notices under such Section by electronic communication.  The Administrative Agent or the  Borrower may, in its discretion, agree to accept notices and other communications to it hereunder  by electronic communications pursuant to procedures approved by it; provided that approval of  such procedures may be limited to particular notices or communications.    Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of  an acknowledgement from the intended recipient (such as by the “return receipt requested”  function, as available, return e-mail or other written acknowledgement); provided that if such  notice or other communication is not sent during the normal business hours of the recipient, such  notice or communication shall be deemed to have been sent at the opening of business on the next  business day for the recipient, and (ii) notices or communications posted to an Internet or intranet  website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail  





 






  108  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  address as described in the foregoing clause (i) of notification that such notice or communication  is available and identifying the website address therefor.    (c) Change of Address, Etc.  Any party hereto may change its address or telecopier  number for notices and other communications hereunder by notice to the other parties hereto.      10.3 No Waiver; Cumulative Remedies.     No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any  Lender, any right, remedy, power or privilege hereunder 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 are cumulative and not exclusive of any rights, remedies, powers  and privileges provided by law.    10.4 Survival of Representations and Warranties.     All representations and warranties made hereunder and in any document, certificate or statement  delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this  Agreement and the other Credit Documents and the making of the Loans; provided that all such  representations and warranties shall terminate on the date upon which the Commitments have been  terminated and all Credit Party Obligations have been paid in full.    10.5 Payment of Expenses and Taxes.    (a) Costs and Expenses.  The Credit Parties shall pay (i) all reasonable and  documented out of pocket expenses incurred by the Administrative Agent and its Affiliates  (including the reasonable and documented fees, charges and disbursements of counsel for the  Administrative Agent limited to one counsel for the Administrative Agent and, if reasonably  necessary, a single local counsel in each relevant jurisdiction), 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 amendments,  modifications or waivers of the provisions hereof or thereof (whether or not the Transactions shall  be consummated), (ii) all reasonable out of pocket expenses incurred by the Issuing Lenders and  the Swingline Lender in connection with the issuance, amendment, renewal or extension of any  Letter of Credit or Swingline Loan or any demand for payment thereunder and (iii) all reasonable  out of pocket expenses incurred by the Administrative Agent, any Lender, the Issuing Lenders or  the Swingline Lender (including the fees, charges and disbursements of any counsel for the  Administrative Agent, any Lender, the Swingline Lender or the Issuing Lenders), 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 reasonable out of pocket  expenses incurred during any workout, restructuring or negotiations in respect of such Loans or  Letters of Credit.    (b) Indemnification by the Credit Parties.  The Credit Parties shall indemnify the  Administrative Agent (and any sub-agent thereof), each Lender, the Issuing Lenders, the  Swingline Lender and each Related Party of any of the foregoing Persons (each such Person  being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all  losses, claims, penalties, damages, liabilities and reasonable and documented out-of-pocket  expenses (including the reasonable and documented fees, charges and disbursements of any  





 






  109  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by  any third party or by the Borrower or any other Credit Party 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 and  the administration and enforcement of the Credit Documents, (ii) any Loan or Letter of Credit or  the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lenders  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 Materials of Environmental Concern on or from any property  owned or operated by any Credit Party or any of its Subsidiaries, or any liability under  Environmental Law related in any way to any Credit Party or any of its Subsidiaries, or (iv) any  actual or prospective claim, litigation, investigation or proceeding relating to any of the  foregoing, whether based on contract, tort or any other theory, whether brought by a third party or  by the Borrower or any other 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 (i) are determined by a court of  competent jurisdiction by final and nonappealable judgment to have resulted from the gross  negligence or willful misconduct of such Indemnitee, (ii) relate to a claim brought by any Credit  Party against an Indemnitee for breach in bad faith of such Indemnitee’s funding obligations as  determined by a court of competent jurisdiction in a final non-appealable judgment or (iii) relate  to any dispute solely among Indemnitees, other than any claims against the Administrative Agent  (and any sub-agent thereof) in its respective capacity or in fulfilling its role as an administrative  agent or arranger or any similar role hereunder, and other than any claims arising out of any act or  omission on the part of any Credit Party or any of its Subsidiaries.    (c) Reimbursement by Lenders.  To the extent that the Credit Parties for any reason  fail to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid  by it to the Administrative Agent (or any sub-agent thereof), the Issuing Lenders, Swingline  Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the  Administrative Agent (or any such sub-agent), the Issuing Lenders, Swingline Lender or such  Related Party, as the case may be, such Lender’s Commitment Percentage (determined as of the  time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid  amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or  related expense, as the case may be, was incurred by or asserted against the Administrative Agent  (or any such sub-agent), the Issuing Lenders or Swingline Lender in its capacity as such, or  against any Related Party of any of the foregoing acting for the Administrative Agent (or any  such sub-agent), Issuing Lenders or Swingline Lender in connection with such capacity.      (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by  applicable law, none of the parties hereto shall assert, and each of the parties hereto hereby  waives, any claim against any other party hereto, 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, any Loan or Letter of Credit or the use of  the proceeds thereof; provided, however, that the Credit Parties’ indemnity and contribution  obligations, as set forth in this Section will apply in respect of any special, indirect, consequential  or punitive damages that may be awarded against any Indemnitee in connection with a claim by a  third party unaffiliated with such Indemnitee.  No Indemnitee referred to in paragraph (b) above  shall be liable for any damages arising from the use by unintended recipients of any information  or other materials distributed by it through telecommunications, electronic or other information  





 






  110  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  transmission systems in connection with this Agreement or the other Credit Documents or the  Transactions, except to the extent that a court of competent jurisdiction by final and  nonappealable judgment determines that the receipt of such information or materials by any such  unintended recipient resulted from the gross negligence or willful misconduct of such Indemnitee.    (e) Payments.  All amounts due under this Section shall be payable promptly/not  later than five (5) days after demand therefor.    (f) Survival.  The agreements contained in this Section shall survive the resignation  of the Administrative Agent, the Swingline Lender and the Issuing Lenders, the replacement of  any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of  the Credit Party Obligations.    10.6 Successors and Assigns; Participations; Purchasing Lenders.    (a) Successors and Assigns Generally.  The provisions of this Agreement shall be  binding upon and inure to the benefit of the parties hereto and their respective successors and  assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign  or otherwise transfer any of its rights or obligations hereunder without the prior written consent of  the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of  its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of  paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of  paragraph (d) of this Section or (iii) by way of pledge or assignment of a security interest subject  to the restrictions of paragraph (f) of this Section (and any other attempted assignment or transfer  by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied,  shall be construed to confer upon any Person (other than the parties hereto, their respective  successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of  this Section and, to the extent expressly contemplated hereby, the Indemnitees and Related  Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy  or claim under or by reason of this Agreement.    (b) Assignments by Lenders.  Any Lender may at any time assign to one or more  Eligible Assignees all or a portion of its rights and obligations under this Agreement (including  all or a portion of its Commitment and the Loans at the time owing to it); provided that any such  assignment shall be subject to the following conditions:     (i)  Minimum Amounts.      (A) in the case of an assignment of the entire remaining amount of  the assigning Lender’s Commitment and the Loans at the time owing to it or in  the case of an assignment to a Lender, an Affiliate of a Lender or an Approved  Fund, no minimum amount need be assigned; and    (B) in any case not described in paragraph (b)(i)(A) of this Section,  the aggregate amount of the Revolving Commitment (which for this purpose  includes Loans outstanding thereunder) or, if the Revolving Commitment is not  then in effect, the principal outstanding balance of the Loans of the assigning  Lender subject to each such assignment (determined as of the date the  Assignment and Assumption with respect to such assignment is delivered to the  Administrative Agent or, if “Trade Date” is specified in the Assignment and  Assumption, as of the Trade Date) shall not be less than $5,000,000 (provided,  





 






  111  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  however, that simultaneous assignments shall be aggregated in respect of a  Lender and its Approved Funds), unless each of the Administrative Agent and, so  long as no Event of Default has occurred and is continuing, the Borrower  otherwise consents (each such consent not to be unreasonably withheld or  delayed).     (ii)  Proportionate Amounts.  Each partial assignment shall be made as an  assignment of a proportionate part of all the assigning Lender’s rights and obligations  under this Agreement with respect to the Loan or the Commitment assigned, except that  this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights  and obligations among separate tranches on a non-pro rata basis.      (iii)  Required Consents.  No consent shall be required for any assignment  except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:    (A) the consent of the Borrower (such consent not to be  unreasonably withheld or delayed) shall be required unless (x) an Event of  Default has occurred and is continuing at the time of such assignment or (y) such  assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;  provided that the Borrower shall be deemed to have consented to any such  assignment unless it shall object thereto by written notice to the Administrative  Agent within five (5) Business Days after having received notice thereof;    (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required for assignments if such  assignment is to a Person that is not a Lender with a Commitment in respect of  such facility, an Affiliate of such Lender or an Approved Fund with respect to  such Lender; and    (C) the consent of the Issuing Lenders and Swingline Lender (such  consent not to be unreasonably withheld or delayed) shall be required for  assignments.    (iv)  Assignment and Assumption.  The parties to each assignment shall  execute and deliver to the Administrative Agent an Assignment and Assumption, together  with a processing and recordation fee of $3,500; provided that only one (1) such fee shall  be payable in respect of simultaneous assignments by a Lender and its Approved Funds),  and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an  Administrative Questionnaire.    (v)  No Assignment to Certain Persons.  No such assignment shall be made to  (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any  Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender  hereunder, would constitute a Defaulting Lender or a Subsidiary thereof.    (vi)  No Assignment to Natural Persons.  No such assignment shall be made  to a natural Person (or a trust for, or owned and operated for the primary benefit of, a  natural Person).     (vii) Certain Additional Payments.  In connection with any assignment of  rights and obligations of any Defaulting Lender hereunder, no such assignment shall be  





 






  112  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  effective unless and until, in addition to the other conditions thereto set forth herein, the  parties to the assignment shall make such additional payments to the Administrative  Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which  may be outright payment, purchases by the assignee of participations or  subparticipations, or other compensating actions, including funding, with the consent of  the Borrower and the Administrative Agent, the applicable pro rata share of Loans  previously requested but not funded by the Defaulting Lender, to each of which the  applicable assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in  full all payment liabilities then owed by such Defaulting Lender to the Administrative  Agent or any Lender hereunder (and interest accrued thereon), and (B) acquire (and fund  as appropriate) its full pro rata share of all Loans and participations in Letters of Credit  and Swingline Loans in accordance with its Commitment Percentage.  Notwithstanding  the foregoing, in the event that any assignment of rights and obligations of any  Defaulting Lender hereunder shall become effective under applicable law without  compliance with the provisions of this paragraph, then the assignee of such interest shall  be deemed to be a Defaulting Lender for all purposes of this Agreement until such  compliance occurs.    Subject to acceptance and recording thereof by the Administrative Agent pursuant to  paragraph (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 2.14 and 10.5 with respect to  facts and circumstances occurring prior to the effective date of such assignment.  Any assignment  or transfer by a Lender of rights or obligations under this Agreement that does not comply with  this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a  participation in such rights and obligations in accordance with paragraph (d) of this Section.    (c) Register.  The Administrative Agent, acting solely for this purpose as an agent of  the Borrower, shall maintain at one of its offices in Charlotte, North Carolina a copy of each  Assignment and Assumption delivered to it and a register for the recordation of the names and  addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing to,  each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the  Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may  treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender  hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The  Register shall be available for inspection by the Borrower and any Lender, at any reasonable time  and from time to time upon reasonable prior notice; provided that a Lender shall only be entitled  to inspect its own entry in the Register and not that of any other Lender.    (d) Participations.  Any Lender may at any time, without the consent of, or notice to,  the Borrower or the Administrative Agent, sell participations to any Person (other than a natural  Person, or a trust for, or owned and operated for the primary benefit of, a natural Person, or the  Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a  portion of such Lender’s rights and/or obligations under this Agreement (including all or a  portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s  obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely  





 






  113  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  responsible to the other parties hereto for the performance of such obligations and (iii) the  Borrower, the Administrative Agent and the Lenders, Issuing Lenders and Swingline Lender shall  continue to deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement.      Any agreement or instrument pursuant to which a Lender sells such a participation shall  provide that such Lender shall retain the sole right to enforce this Agreement and to approve any  amendment, modification or waiver of any provision of this Agreement; provided that such  agreement or instrument may provide that such Lender will not, without the consent of the  Participant, agree to any amendment, modification or waiver described in Section 10.1 that  requires the consent of all Lenders or all affected Lenders that affects such Participant.  The  Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17 and  2.18 (subject to the requirements and limitations therein, including the requirements under  Section 2.18(g) (it being understood that the documentation required under Section 2.18(g) shall  be delivered to the participating Lender)) to the same extent as if it were a Lender and had  acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such  Participant (A) agrees to be subject to the provisions of Section 2.20 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 2.17 or 2.18, with respect to any participation, than its participating Lender would  have been entitled to receive, except to the extent such entitlement to receive a greater payment  results from a Change in Law that occurs after the Participant acquired the applicable  participation.  Each Lender that sells a participation agrees, at the Borrower's request and  expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of  Section 2.20 with respect to any Participant.  To the extent permitted by law, each Participant also  shall be entitled to the benefits of Section 10.7 as though it were a Lender; provided that such  Participant agrees to be subject to Section 10.7 as though it were a Lender.  Each Lender that sells  a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,  maintain a register on which it enters the name and address of each Participant and the principal  amounts (and stated interest) of each Participant’s interest in the 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, the Administrative Agent (in its capacity as Administrative  Agent) shall have no responsibility for maintaining a Participant Register.      (e) Limitations Upon Participant Rights.  A Participant shall not be entitled to  receive any greater payment under Sections 2.17 and 2.18 than the applicable Lender would have  been entitled to receive with respect to the participation sold to such Participant, unless the sale of  the participation to such Participant is made with the Borrower’s prior written consent.  A  Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits  of Section 2.18 unless the Borrower is notified of the participation sold to such Participant and  such Participant agrees, for the benefit of the Borrower, to comply with Section 2.18 as though it  were a Lender.      





 






  114  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (f) Certain Pledges.  Any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Agreement to secure obligations of such Lender,  including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided  that no such pledge or assignment shall release such Lender from any of its obligations hereunder  or substitute any such pledgee or assignee for such Lender as a party hereto.      10.7 Adjustments; Set-off.    (a) If an Event of Default shall have occurred and be continuing, each Lender, the  Issuing Lenders, the Swingline Lender and each of their respective Affiliates is hereby authorized  at any time and from time to time, to the fullest extent permitted by applicable law, to set off and  apply any and all deposits (general or special, time or demand, provisional or final, in whatever  currency) at any time held and other obligations (in whatever currency) at any time owing by  such Lender, the Issuing Lenders, the Swingline Lender or any such Affiliate to or for the credit  or the account of the Borrower or any other Credit Party against any and all of the obligations of  the Borrower or such Credit Party now or hereafter existing under this Agreement or any other  Credit Document to such Lender, the Swingline Lender or the Issuing Lenders, irrespective of  whether or not such Lender, the Swingline Lender or the Issuing Lenders shall have made any  demand under this Agreement or any other Credit Document and although such obligations of the  Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office  of such Lender, the Swingline Lender or the Issuing Lenders different from the branch or office  holding such deposit or obligated on such indebtedness; provided that in the event that any  Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set off shall be paid  over immediately to the Administrative Agent for further application in accordance with the  provisions of Section 2.23 and, pending such payment, shall be segregated by such Defaulting  Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent,  the Issuing Lenders, the Swingline Lender and the other Lenders and (ii) the Defaulting Lender  shall provide promptly to the Administrative Agent a statement describing in reasonable detail the  Credit Party Obligations owing to such Defaulting Lender as to which it exercised such right of  setoff.  The rights of each Lender, the Swingline Lender, the Issuing Lenders and their respective  Affiliates under this Section are in addition to other rights and remedies (including other rights of  setoff) that such Lender, the Swingline Lender, the Issuing Lenders or their respective Affiliates  may have.  Each Lender, the Swingline Lender and the Issuing Lenders agrees to notify the  Borrower and the Administrative Agent promptly after any such setoff and application, provided  that the failure to give such notice shall not affect the validity of such setoff and application.    (b) If any Lender shall, by exercising any right of setoff or counterclaim or  otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other  obligations hereunder resulting in such Lender’s receiving payment of a proportion of the  aggregate amount of its Loans and accrued interest thereon or other such obligations greater than  its pro rata share thereof as provided herein, then the Lender receiving such greater proportion  shall (i) notify the Administrative Agent of such fact, and (ii) purchase (for cash at face value)  participations in the Loans and such other obligations of the other Lenders, or make such other  adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the  Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on  their respective Loans and other amounts owing them, provided that:    (A) if any such participations are purchased and all or any portion of  the payment giving rise thereto is recovered, such participations shall be  rescinded and the purchase price restored to the extent of such recovery, without  interest; and  





 






  115  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18    (B) the provisions of this paragraph shall not be construed to apply  to (x) any payment made by the Borrower pursuant to and in accordance with the  express terms of this Agreement (including the application of funds arising from  the existence of a Defaulting Lender), (y) any payment obtained by a Lender as  consideration for the assignment of or sale of a participation in any of its Loans  or participations in Letters of Credit to any assignee or participant, other than to  any Credit Party or any Subsidiary thereof (as to which the provisions of this  paragraph shall apply) or (z) (1) any amounts applied by the Swingline Lender to  outstanding Swingline Loans and (2) any amounts received by the Issuing  Lenders and/or Swingline Lender to secure the obligations of a Defaulting  Lender to fund risk participations hereunder.    (c) 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 each Credit Party rights of setoff and counterclaim  with respect to such participation as fully as if such Lender were a direct creditor of each Credit  Party in the amount of such participation.    10.8 Table of Contents and Section Headings.     The table of contents and the Section and subsection headings herein are intended for  convenience only and shall be ignored in construing this Agreement.    10.9 Counterparts; Effectiveness: Electronic Execution.    (a) Counterparts; 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.  Except as  provided in Section 4.1, this Agreement shall become effective when it shall have been executed  by the Borrower, the Guarantors, the Administrative Agent, and the Lenders and the  Administrative Agent shall have received copies hereof and thereof (telefaxed or otherwise), and  thereafter this Agreement shall be binding upon and inure to the benefit of the Borrower, the  Guarantors, the Administrative Agent and each Lender and their respective successors and  permitted assigns.  Delivery of an executed counterpart of a signature page of this Agreement by  telecopy or email shall be effective as delivery of a manually executed counterpart of this  Agreement.    (b) Electronic Execution of Assignments.  The words “execution,” “signed,”  “signature,” and words of like import in any Assignment and Assumption shall be deemed to  include electronic signatures or the keeping of records in electronic form, each of which shall be  of the same legal effect, validity or enforceability as a manually executed signature or the use of a  paper-based recordkeeping system, as the case may be, to the extent and as provided for in any  applicable law, including the Federal Electronic Signatures in Global and National Commerce  Act, the New York State Electronic Signatures and Records Act, or any other similar state laws  based on the Uniform Electronic Transactions Act.    10.10 Judgment Currency.    If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due  hereunder or under any other Credit Document in one currency into another currency, the rate of  





 






  116  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  exchange used shall be that at which in accordance with normal banking procedures the Administrative  Agent could purchase the first currency with such other currency on the Business Day preceding that on  which final judgment is given.  The obligation of any Credit Party in respect of any such sum due from it  to the Administrative Agent or any Lender hereunder or under the other Credit Documents shall,  notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum  is denominated in accordance with the applicable provisions of this Agreement (the “Agreement  Currency”), be discharged only to the extent that on the Business Day following receipt by the  Administrative Agent or such Lender of any sum adjudged to be so due in the Judgment Currency, the  Administrative Agent or such Lender may in accordance with normal banking procedures purchase the  Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so  purchased is less than the sum originally due to the Administrative Agent or such Lender in the  Agreement Currency, each Credit Party agrees, as a separate obligation and notwithstanding any such  judgment, to indemnify the Administrative Agent or such Lender or the Person to whom such obligation  was owing against such loss.  If the amount of the Agreement Currency so purchased is greater than the  sum originally due to the Administrative Agent or such Lender in such currency, the Administrative  Agent or such Lender agrees to return the amount of any excess to the Borrower (or to any other Person  who may be entitled thereto under applicable law).    10.11 Severability.     Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as  to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without  invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any  jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.    10.12 Integration.     This Agreement and the other Credit Documents represent the agreement of the Borrower, the  Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no  promises, undertakings, representations or warranties by the Administrative Agent, the Borrower or any  Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other  Credit Documents.    10.13 GOVERNING LAW.     THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND  OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE OTHER CREDIT  DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN  ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.    10.14 Consent to Jurisdiction and Service of Process.     All judicial proceedings brought against the Borrower and/or any other Credit Party with respect  to this Agreement, any Note or any of the other Credit Documents may be brought in the courts of the  State of New York in New York County or of the United States for the Southern District of New York, and,  by execution and delivery of this Agreement, each of the Borrower and the other Credit Parties accepts,  for itself and in connection with its properties, generally and unconditionally, the non-exclusive  jurisdiction of the aforesaid courts and irrevocably agrees to be bound by any final judgment rendered  thereby in connection with this Agreement, any Note or any other Credit Document from which no appeal  has been taken or is available.  Each of the Borrower and the other Credit Parties irrevocably agrees that  all service of process in any such proceedings in any such court may be effected by mailing a copy  





 






  117  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at  its address set forth in Section 10.2 or at such other address of which the Administrative Agent shall have  been notified pursuant thereto, such service being hereby acknowledged by each of the Borrower and the  other Credit Parties to be effective and binding service in every respect.  Each of the Borrower, the  Administrative Agent and the Lenders irrevocably waives any objection, including, without limitation,  any objection to the laying of venue based on the grounds of forum non conveniens which it may now or  hereafter have to the bringing of any such action or proceeding in any such jurisdiction.  Nothing herein  shall affect any right that any party hereto may have to serve process in any other manner permitted by  law or shall limit the right of any Lender to bring proceedings against the Borrower or the other Credit  Parties in the court of any other jurisdiction.    10.15 Confidentiality; Non-Public Information.    Each of the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lenders  agrees to maintain the confidentiality of non-public information with respect to the Borrower and its  Subsidiaries which is furnished by or on behalf of Borrower or its Subsidiaries pursuant to this  Agreement, any other Credit Documents or any documents contemplated by or referred to herein or  therein, except that such information may be disclosed (a) to its Affiliates and to its and its Affiliates’  respective partners, directors, officers, employees, agents, advisors and other representatives (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 and that the disclosing party  shall remain responsible for any unauthorized disclosure of such information by such Persons), (b) to the  extent requested by any regulatory authority purporting to have jurisdiction over it (including any self- regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent  required by applicable laws or regulations or by any subpoena or similar legal process; provided that such  Person will, to the extent permitted by law, promptly give notice to the Borrower before any such  disclosure so that the Borrower may seek to obtain a protective order, (d) to any other party hereto, (e) in  connection with the exercise of any remedies hereunder, under any other Credit Document or Bank  Product or any action or proceeding relating to this Agreement, any other Credit Document or Bank  Product or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing  provisions substantially the same as those of this Section, to any assignee of or Participant in, or any  prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (g)  to (i) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating  to the Borrower and its obligations, (ii) an investor or prospective investor in securities issued by an  Approved Fund that also agrees that such information shall be used solely for the purpose of evaluating  an investment in such securities issued by the Approved Fund, (iii) a trustee, collateral manager, servicer,  backup servicer, noteholder or secured party in connection with the administration, servicing and  reporting on the assets serving as collateral for securities issued by an Approved Fund, or (iv) a nationally  recognized rating agency that requires access to information regarding the Credit Parties, the Loans and  Credit Documents in connection with ratings issued in respect of securities issued by an Approved Fund  (in each case, 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 and, in  the case of any recipient described in clauses (i), (ii) or (iii), required to execute an agreement containing  provisions substantially the same as those of this Section), (h) with the consent of the 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 the Administrative Agent, any Lender, the Swingline Lender, the  Issuing Lenders or any of their respective Affiliates on a nonconfidential basis from a source other than  the Borrower.  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.  In addition, the Administrative Agent and the Lenders may disclose the  





 






  118  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  existence of this Agreement and information about this Agreement to market data collectors, similar  service providers to the lending industry and service providers to the Administrative Agent and the  Lenders in connection with the administration of this Agreement, the other Credit Documents and the  Commitments.    10.16 Acknowledgments.    The Borrower and the other Credit Parties each hereby acknowledges that:    (a) it has been advised by counsel in the negotiation, execution and delivery of each  Credit Document;    (b) neither the Administrative Agent nor any Lender has any fiduciary relationship  with or duty to the Borrower or any other Credit Party arising out of or in connection with this  Agreement and the relationship between Administrative Agent and Lenders, on one hand, and the  Borrower and the other Credit Parties, on the other hand, in connection herewith is solely that of  debtor and creditor; and    (c) no joint venture exists among the Lenders or among the Borrower and the  Lenders.    10.17 Waivers 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  (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.    10.18 Patriot Act Notice.      Each Lender and the Administrative Agent (for itself and not on behalf of any other party) hereby  notifies the Borrower that, pursuant to the requirements of the Patriot Act or any other Anti-Money  Laundering Laws, it is required to obtain, verify and record information that identifies the Borrower and  the other Credit Parties, which information includes the name and address of the Borrower and the other  Credit Parties and other information that will allow such Lender or the Administrative Agent, as  applicable, to identify the Borrower and the other Credit Parties in accordance with the Patriot Act or such  other Anti-Money Laundering Laws.  The Borrower shall, and shall cause each Subsidiary to, provide  such information and take such actions as are reasonably requested by the Administrative Agent or any  Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the  Patriot Act and any other Anti-Money Laundering Laws.    10.19 Resolution of Drafting Ambiguities.    





 






  119  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Each Credit Party acknowledges and agrees that it was represented by counsel in connection with  the execution and delivery of this Agreement and the other Credit Documents to which it is a party, that it  and its counsel reviewed and participated in the preparation and negotiation hereof and thereof and that  any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not  be employed in the interpretation hereof or thereof.    10.20 Press Releases and Related Matters.    The Credit Parties and their Affiliates agree that they will not in the future issue any press  releases or other public disclosure using the name of Administrative Agent or any Lender or their  respective Affiliates or referring to this Agreement or any of the Credit Documents without the prior  written consent of such Person (such consent not to be unreasonably withheld or delayed), unless (and  only to the extent that), the Credit Parties or such Affiliate is required to do so under law and then, in any  event, the Credit Parties or such Affiliate will consult with such Person before issuing such press release  or other public disclosure.  Likewise, neither the Administrative Agent nor any Lender shall publish any  advertising material relating to the Transactions which uses the name, product photographs, logo or  trademark of the Credit Parties without the prior written consent of the Borrower (such consent not to be  unreasonably withheld or delayed); provided that the Administrative Agent or any Lender may publish or  otherwise identify in any advertising or marketing materials a “tombstone” or similar summary of the  credit facility that includes the role of such party in the credit facility, the Borrower’s logo, the names of  the parties to this Agreement and the amount and type of the credit facility without the consent of the  Borrower.       10.21 Appointment of Borrower.    Each of the Guarantors hereby appoints the Borrower to act as its agent for all purposes under this  Agreement and agrees that (a) the Borrower may execute such documents on behalf of such Guarantor as  the Borrower deems appropriate in its sole discretion and each Guarantor shall be obligated by all of the  terms of any such document executed on its behalf, (b) any notice or communication delivered by the  Administrative Agent or the Lender to the Borrower shall be deemed delivered to each Guarantor and  (c) the Administrative Agent or the Lenders may accept, and be permitted to rely on, any document,  instrument or agreement executed by the Borrower on behalf of each Guarantor.    10.22 No Advisory or Fiduciary Responsibility.    In connection with all aspects of each Transaction, each of the Credit Parties acknowledges and  agrees, and acknowledges its Affiliates’ understanding, that:  (a) the credit facility provided for hereunder  and any related arranging or other services in connection therewith (including in connection with any  amendment, waiver or other modification hereof or of any other Credit Document) are an arm’s-length  commercial transaction between the Credit Parties and their Affiliates, on the one hand, and the  Administrative Agent and WFS, on the other hand, and the Credit Parties are capable of evaluating and  understanding and understands and accepts the terms, risks and conditions of the Transactions (including  any amendment, waiver or other modification hereof or thereof); (b) in connection with the process  leading to such transaction, the Administrative Agent and WFS each is and has been acting solely as a  principal and is not the financial advisor, agent or fiduciary, for any Credit Party or any of their Affiliates,  stockholders, creditors or employees or any other Person; (c) neither the Administrative Agent nor WFS  has assumed or will assume an advisory, agency or fiduciary responsibility in favor of any Credit Party  with respect to any of the Transactions or the process leading thereto, including with respect to any  amendment, waiver or other modification hereof or of any other Credit Document (irrespective of  whether the Administrative Agent or WFS has advised or is currently advising any Credit Party or any of  its Affiliates on other matters) and neither the Administrative Agent nor WFS has any obligation to any  





 






  120  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Credit Party or any of their Affiliates with respect to the Transactions except those obligations expressly  set forth herein and in the other Credit Documents; (d) the Administrative Agent and WFS and their  respective Affiliates may be engaged in a broad range of transactions that involve interests that differ  from those of the Credit Parties and their Affiliates, and neither the Administrative Agent nor WFS has  any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship;  and (e) the Administrative Agent and WFS have not provided and will not provide any legal, accounting,  regulatory or tax advice with respect to any of the Transactions hereby (including any amendment, waiver  or other modification hereof or of any other Credit Document) and the Credit Parties have consulted their  own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate.  Each of the  Credit Parties hereby waives and releases, to the fullest extent permitted by law, any claims that it may  have against the Administrative Agent or WFS with respect to any breach or alleged breach of agency or  fiduciary duty.      10.23 Responsible Officers and Authorized Officers.    The Administrative Agent and each of the Lenders are authorized to rely upon the continuing  authority of the Responsible Officers and the Authorized Officers with respect to all matters pertaining to  the Credit Documents including, but not limited to, the selection of interest rates, the submission of  requests for Extensions of Credit and certificates with regard thereto.  Such authorization may be changed  only upon written notice to Administrative Agent accompanied by (a) an updated Schedule 3.21 and  (b) evidence, reasonably satisfactory to Administrative Agent, of the authority of the Person giving such  notice and such notice shall be effective not sooner than five (5) Business Days following receipt thereof  by Administrative Agent (or such earlier time as agreed to by the Administrative Agent).      10.24 Amendment and Restatement; No Novation.    This Agreement constitutes an amendment and restatement of the Existing Credit Agreement  effective from and after the Closing Date.  The execution and delivery of this Agreement shall not  constitute a novation of any indebtedness or other obligations owing under the Existing Credit Agreement  to the Lenders party thereto or the Administrative Agent based on facts or events occurring or existing  prior to the execution and delivery of this Agreement.  On the Closing Date, the credit facilities described  in the Existing Credit Agreement shall be amended, supplemented, modified and restated in their entirety  by the credit facilities described herein, and all loans, commitments and other obligations of the Borrower  outstanding as of the Closing Date under the Existing Credit Agreement shall be deemed to be loans,  commitments and obligations outstanding under this Agreement, without any further action by any  Person, except that the Administrative Agent shall make such transfers of funds as are necessary in order  that the outstanding balance of such loans, together with any Extensions of Credit made on the Closing  Date, are apportioned in accordance the Commitments of the Lenders hereunder.    10.25 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.    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 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 a Resolution Authority and  agrees and consents to, and acknowledges and agrees to be bound by:      (a) the application of any Write-Down and Conversion Powers by an Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto  that is an Affected Financial Institution; and    





 






  121  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  (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 entity, 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 any Resolution Authority.    10.26 Certain ERISA Matters.      (a) Each Lender (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party  hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the  Administrative Agent, each Lead Arranger and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of the 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        (iv)  such other representation, warranty and covenant as may be agreed in  writing between the Administrative Agent, in its sole discretion, and such Lender.   





 






  122  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18       (b)  In addition, unless sub-clause (i) in the immediately preceding clause (a) is true  with respect to a Lender or such Lender has not provided another representation, warranty and  covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such  Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, each  Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the  benefit of the Borrower or any other Credit Party, that:        (i)  none of the Administrative Agent, any Lead Arranger nor any of their  respective Affiliates is a fiduciary with respect to the assets of such Lender (including in  connection with the reservation or exercise of any rights by the Administrative Agent  under this Agreement, any 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 $50,000,000, 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 Guaranty 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 the Administrative  Agent, each Lead Arranger or 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) The Administrative Agent and each Lead Arranger hereby informs 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  receive fees or other payments in connection with the transactions contemplated hereby, the  





 






  123  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  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.    10.27 ESG Amendment.    (a) After the Closing Date, the Borrower, in consultation with one or more sustainability  structuring agents selected by Borrower (the “Sustainability Structuring Agents”), shall be entitled to  either (i) establish specified Key Performance Indicators (“KPIs”) with respect to certain Environmental,  Social and Governance (“ESG”) targets of the Borrower and its subsidiaries or (ii) establish external ESG  ratings targets to be agreed. Upon effectiveness of the ESG Amendment (defined below), such KPIs or  ESG ratings, as applicable, shall be used together with the Leverage Ratio levels set forth in the definition  of Applicable Percentage, to determine pricing under this Agreement. The ESG Amendment will include  certain adjustments to the otherwise agreed Applicable Percentage in an amount not to exceed (i) in the  case of the Commitment Fee, a 1.00 basis point adjustment in the otherwise applicable Commitment Fee,  and (ii) in the case of the “Alternate Base Rate Margin” or “Term SOFR and RFR Margin for Revolving  Loans and Letter of Credit Fees” (the “Margins and LC Fees”), a 5.00 basis point adjustment in the  otherwise applicable Margins and LC Fees. If KPIs are utilized, (i) the pricing adjustments will require,  among other things, reporting and validation of the measurement of the KPIs in a manner that is aligned  with the Sustainability Linked Loan Principles as published by The Loan Syndications and Trading  Association, in each case as at the time of the ESG Amendment (defined below) and is to be agreed  between the Borrower and the Sustainability Structuring Agents (each acting reasonably) and (ii) any  proposed ESG Amendment shall also identify a sustainability assurance provider, provided that any such  sustainability assurance provider shall be a qualified external reviewer, independent of the Borrower and  its Subsidiaries, with relevant expertise, such as an auditor, environmental consultant and/or independent  ratings agency of recognized national standing.  Notwithstanding the foregoing, to the extent WFS is not  designated as a Sustainability Structuring Agent, any Sustainability Structuring Agents designated by the  Borrower shall be reasonably satisfactory to the Administrative Agent.    (b) The KPIs or ESG ratings provisions, and other related provisions (the “ESG Pricing  Provisions”) will be provided to the Lenders for review in the form of an amendment to the Credit  Agreement which shall be executed by the Borrower, the Sustainability Structuring Agents and the  Required Lenders (such amendment, the “ESG Amendment”). Following the effectiveness of the ESG  Amendment, any modification to the ESG Pricing Provisions which does not have the effect of reducing  the Applicable Percentage to a level not otherwise permitted by the immediately preceding paragraph  shall be subject only to the consent of the Required Lenders. The Sustainability Structuring Agents will  (i) assist the Borrower in determining the ESG Pricing Provisions of this Agreement and (ii) assist the  Borrower in preparing informational materials focused on ESG to be used in connection with this  Agreement.    10.28 QFC Stay Provisions.      To the extent that the Credit Documents provide support, through a guarantee or otherwise, for  Hedge Agreements 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 FDIC 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  





 






  124  DMSLIBRARY01\18464\015066\31961018.v18-4/17/18  Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the  United States or any other state of the United States):     (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported  QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such  Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC  or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer  would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit  Support (and any such interest, obligation and rights in property) were governed by the laws of the United  States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered  Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the  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 10.28, 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).    [Remainder of Page Intentionally Left Blank]  





 






[HNI CORPORATION – CREDIT AGREEMENT]  Error! Unknown document property name.   IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this  Agreement to be duly executed and delivered as of the date first above written.    BORROWER:   HNI CORPORATION,   an Iowa corporation        By: /s/ Steven M. Bradford         Name: Steven M. Bradford         Title: SVP, General Counsel, and Secretary       GUARANTORS:  THE HON COMPANY LLC      ALLSTEEL INC.      HEARTH & HOME TECHNOLOGIES LLC              By: /s/ Jack D. Herring         Name: Jack D. Herring          Title: Treasurer           





 






[HNI CORPORATION – CREDIT AGREEMENT]  Error! Unknown document property name.  LENDERS:   WELLS FARGO BANK, NATIONAL ASSOCIATION,  individually in its capacity as a Lender, Issuing Lender and Swingline  Lender and in its capacity as Administrative Agent        By: /s/ Greg Strauss          Name: Greg Strauss          Title: Managing Director       





 






[HNI CORPORATION – CREDIT AGREEMENT]  Error! Unknown document property name.  LENDERS:   BANK OF AMERICA, N.A.,      as a Lender            By: /s/ Tobin Scott Fiser         Name: Tobin Scott Fiser         Title: Senior Vice President           





 






[HNI CORPORATION – CREDIT AGREEMENT]  Error! Unknown document property name.  LENDERS:  Truist Bank,      as a Lender           By: /s/ Alysa Trakas         Name: Alysa Trakas          Title: Director      





 






    LENDERS:  JP Morgan Chase Bank, N.A.,      as a Lender           By: /s/ Suzanne Ergastolo         Name: Suzanne Ergastolo         Title: Executive Director     





 






    LENDERS:  Bankers Trust Company,      as a Lender           By: /s/ Chris Kroeger         Name: Chris Kroeger          Title: Vice President      





 






    LENDERS:  U.S. Bank National Association,      as a Lender           By: /s/ Mila Yakovlev         Name: Mila Yakovlev          Title: Senior Vice President