executedcreditagreementt






                                              Published CUSIP Number: 89785YAA7                                          Revolving Facility CUSIP Number: 89785YAB5                                 CREDIT AGREEMENT                                Dated as of July 13, 2018                                       among                                  TRUEBLUE, INC.,                                  as the Borrower,               THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,                                  as the Guarantors,                               BANK OF AMERICA, N.A.,                   as Administrative Agent, Swingline Lender and L/C Issuer,                                        and                         THE OTHER LENDERS PARTY HERETO                         PNC BANK, NATIONAL ASSOCIATION                                       and                    WELLS FARGO BANK, NATIONAL ASSOCIATION,                                as Co-Syndication Agents                          KEYBANK NATIONAL ASSOCIATION                                       and                     HSBC BANK USA, NATIONAL ASSOCIATION,                                    as Co-Agents                                    Arranged By:                         BANK OF AMERICA MERRILL LYNCH,                            PNC CAPITAL MARKETS LLC                                       and                          WELLS FARGO SECURITIES, LLC,                       as Joint Lead Arrangers and Joint Bookrunners    CHAR1\1593539v8  





 






                             TABLE OF CONTENTS   Article I. DEFINITIONS AND ACCOUNTING TERMS ........................................................................... 1       1.01  Defined Terms .................................................................................................................... 1       1.02  Other Interpretive Provisions ............................................................................................ 30       1.03  Accounting Terms ............................................................................................................. 31       1.04  Rounding ........................................................................................................................... 32       1.05  Times of Day; Rates ......................................................................................................... 32       1.06  Letter of Credit Amounts .................................................................................................. 32       1.07  Exchange Rates; Currency Equivalents. ........................................................................... 32       1.08  Additional Alternative Currencies. ................................................................................... 33       1.09  Change of Currency. ......................................................................................................... 33 Article II. THE COMMITMENTS AND CREDIT EXTENSIONS........................................................... 33       2.01  Revolving Loans ............................................................................................................... 33       2.02  Borrowings, Conversions and Continuations of Loans .................................................... 34       2.03  Letters of Credit ................................................................................................................ 35       2.04  Swingline Loans ............................................................................................................... 44       2.05  Prepayments ...................................................................................................................... 47       2.06  Termination or Reduction of Aggregate Revolving Commitments .................................. 48       2.07  Repayment of Loans ......................................................................................................... 48       2.08  Interest .............................................................................................................................. 48       2.09  Fees ................................................................................................................................... 49       2.10  Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate............. 50       2.11  Evidence of Debt .............................................................................................................. 50       2.12  Payments Generally; Administrative Agent’s Clawback .................................................. 51       2.13  Sharing of Payments by Lenders ...................................................................................... 52       2.14  Cash Collateral .................................................................................................................. 53       2.15  Defaulting Lenders ........................................................................................................... 54       2.16  Incremental Revolving Loans ........................................................................................... 56 Article III. TAXES, YIELD PROTECTION AND ILLEGALITY ............................................................ 58       3.01  Taxes. ................................................................................................................................ 58       3.02  Illegality ............................................................................................................................ 62       3.03  Inability to Determine Rates ............................................................................................. 63       3.04  Increased Costs; Reserves on Eurodollar Rate Loans ....................................................... 64       3.05  Compensation for Losses .................................................................................................. 65       3.06  Mitigation Obligations; Replacement of Lenders ............................................................. 66       3.07  Survival ............................................................................................................................. 67 Article IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS................................................... 67       4.01  Conditions of Initial Credit Extension .............................................................................. 67       4.02  Conditions to all Credit Extensions .................................................................................. 69 Article V. REPRESENTATIONS AND WARRANTIES .......................................................................... 70       5.01  Existence, Qualification and Power .................................................................................. 70       5.02  Authorization; No Contravention ..................................................................................... 70       5.03  Governmental Authorization; Other Consents .................................................................. 71       5.04  Binding Effect ................................................................................................................... 71       5.05  Financial Statements; No Material Adverse Effect........................................................... 71                                       i   CHAR1\1593539v8  





 






      5.06  Litigation ........................................................................................................................... 71       5.07  No Default......................................................................................................................... 72       5.08  Ownership of Property ...................................................................................................... 72       5.09  Environmental Compliance .............................................................................................. 72       5.10  Insurance ........................................................................................................................... 73       5.11  Taxes ................................................................................................................................. 73       5.12  ERISA Compliance ........................................................................................................... 73       5.13  Subsidiaries ....................................................................................................................... 74       5.14  Margin Regulations; Investment Company Act................................................................ 74       5.15  Disclosure ......................................................................................................................... 74       5.16  Compliance with Laws ..................................................................................................... 74       5.17  Intellectual Property; Licenses, Etc .................................................................................. 74       5.18  Solvency............................................................................................................................ 75       5.19  Perfection of Security Interests in the Collateral .............................................................. 75       5.20  Business Locations; Taxpayer Identification Number ...................................................... 75       5.21  OFAC. ............................................................................................................................... 75       5.22  Anti-Corruption Laws ....................................................................................................... 75       5.23  No EEA Financial Institution............................................................................................ 76       5.24  Beneficial Ownership Certification. ................................................................................. 76 Article VI. AFFIRMATIVE COVENANTS .............................................................................................. 76       6.01  Financial Statements ......................................................................................................... 76       6.02  Certificates; Other Information ......................................................................................... 77       6.03  Notices .............................................................................................................................. 78       6.04  Payment of Taxes .............................................................................................................. 79       6.05  Preservation of Existence, Etc .......................................................................................... 79       6.06  Maintenance of Properties ................................................................................................ 79       6.07  Maintenance of Insurance ................................................................................................. 80       6.08  Compliance with Laws ..................................................................................................... 80       6.09  Books and Records ........................................................................................................... 80       6.10  Inspection Rights .............................................................................................................. 80       6.11  Use of Proceeds ................................................................................................................ 81       6.12  ERISA Compliance ........................................................................................................... 81       6.13  Additional Guarantors ....................................................................................................... 81       6.14  Pledged Assets .................................................................................................................. 81       6.16  Anti-Corruption Laws ....................................................................................................... 82       6.16  KYC Information .............................................................................................................. 82       6.17  Post-Closing Matters ......................................................................................................... 82 Article VII. NEGATIVE COVENANTS .................................................................................................... 82       7.01  Liens ................................................................................................................................. 82       7.02  Investments ....................................................................................................................... 84       7.03  Indebtedness...................................................................................................................... 85       7.04  Fundamental Changes ....................................................................................................... 87       7.05  Dispositions ...................................................................................................................... 87       7.06  Restricted Payments .......................................................................................................... 88       7.07  Change in Nature of Business ........................................................................................... 89       7.08  Transactions with Affiliates .............................................................................................. 89       7.09  Burdensome Agreements .................................................................................................. 89       7.10  Use of Proceeds ................................................................................................................ 90       7.11  Financial Covenants .......................................................................................................... 90                                       ii  CHAR1\1593539v8  





 






      7.12  Prepayment of Other Indebtedness, Etc ............................................................................ 90       7.13  Organization Documents; Fiscal Year; Legal Name, State of Formation and              Form of Entity ................................................................................................................... 90       7.14  Ownership of Subsidiaries ................................................................................................ 91       7.15  Sale Leasebacks ................................................................................................................ 91       7.16  Sanctions ........................................................................................................................... 91       7.17  Anti-Corruption Laws ....................................................................................................... 91 Article VIII. EVENTS OF DEFAULT AND REMEDIES ........................................................................ 91       8.01  Events of Default .............................................................................................................. 91       8.02  Remedies Upon Event of Default ..................................................................................... 93       8.03  Application of Funds ........................................................................................................ 94 Article IX. ADMINISTRATIVE AGENT .................................................................................................. 95       9.01  Appointment and Authority .............................................................................................. 95       9.02  Rights as a Lender ............................................................................................................. 95       9.03  Exculpatory Provisions ..................................................................................................... 96       9.04  Reliance by Administrative Agent .................................................................................... 97       9.05  Delegation of Duties ......................................................................................................... 97       9.06  Resignation of Administrative Agent ............................................................................... 97       9.07  Non-Reliance on Administrative Agent and Other Lenders ............................................. 99       9.08  No Other Duties; Etc ......................................................................................................... 99       9.09  Administrative Agent May File Proofs of Claim; Credit Bidding .................................... 99       9.10  Collateral and Guaranty Matters ..................................................................................... 100       9.11  Secured Cash Management Agreements and Secured Hedge Agreements .................... 101       9.12  ERISA Matters ................................................................................................................ 101 Article X. GUARANTY ........................................................................................................................... 103       10.01 The Guaranty .................................................................................................................. 103       10.02 Obligations Unconditional .............................................................................................. 104       10.03 Reinstatement .................................................................................................................. 105       10.04 Certain Additional Waivers ............................................................................................ 105       10.05 Remedies ......................................................................................................................... 105       10.06 Rights of Contribution .................................................................................................... 105       10.07 Guarantee of Payment; Continuing Guarantee ............................................................... 106       10.08 Keepwell ......................................................................................................................... 106 Article XI. MISCELLANEOUS ............................................................................................................... 107       11.01 Amendments, Etc ............................................................................................................ 107       11.02 Notices; Effectiveness; Electronic Communications. ..................................................... 109       11.03 No Waiver; Cumulative Remedies; Enforcement ........................................................... 111       11.04 Expenses; Indemnity; Damage Waiver ........................................................................... 111       11.05 Payments Set Aside ........................................................................................................ 114       11.06 Successors and Assigns. ................................................................................................. 114       11.07 Treatment of Certain Information; Confidentiality. ........................................................ 118       11.08 Rights of Setoff ............................................................................................................... 119       11.09 Interest Rate Limitation .................................................................................................. 120       11.10 Counterparts; Integration; Effectiveness ......................................................................... 120       11.11 Survival of Representations and Warranties. .................................................................. 120       11.12 Severability ..................................................................................................................... 120       11.13 Replacement of Lenders. ................................................................................................ 121                                       iii  CHAR1\1593539v8  





 






      11.14  Governing Law; Jurisdiction; Etc .................................................................................. 121       11.15 Waiver of Jury Trial. ....................................................................................................... 122       11.16  No Advisory or Fiduciary Responsibility. ..................................................................... 123       11.17 Electronic Execution of Assignments and Certain Other Documents ............................ 123       11.18 USA PATRIOT Act Notice. ........................................................................................... 124       11.19 Subordination of Intercompany Indebtedness................................................................. 124       11.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ..................... 124       11.21 Judgement Currency. ...................................................................................................... 125       11.22 Funding Losses Under Existing Credit Agreement. ....................................................... 125  SCHEDULES   1.01  Existing Letters of Credit  2.01  Commitments and Applicable Percentages  2.03  L/C Commitment  2.04  Swingline Commitment  5.10  Insurance  5.13  Subsidiaries  5.17  IP Rights  5.20(a)  Locations of Real Property  5.20(b) Location of Chief Executive Office, Taxpayer Identification Number, Etc.  5.20(c)  Changes in Legal Name, State of Formation and Structure  5.20(d) Deposit and Investment Accounts  6.17  Post-Closing Matters  7.01  Liens Existing on the Closing Date  7.02  Investments Existing on the Closing Date  7.03  Indebtedness Existing on the Closing Date  11.02  Certain Addresses for Notices   EXHIBITS   1.01        Form of Secured Party Designation Notice  2.02        Form of Loan Notice  2.04        Form of Swingline Loan Notice  2.05        Form of Notice of Loan Prepayment  2.11(a)  Form of Note  3.01        Forms of U.S. Tax Compliance Certificates  6.02        Form of Compliance Certificate  6.13        Form of Joinder Agreement  11.06(b)    Form of Assignment and Assumption  11.06(b)(iv)   Form of Administrative Questionnaire                                          iv  CHAR1\1593539v8  





 






                                CREDIT AGREEMENT         This CREDIT AGREEMENT is entered into as of July 13, 2018 among TRUEBLUE, INC., a  Washington corporation (the “Borrower”), the Guarantors (defined herein), the Lenders (defined herein)  and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and L/C Issuer.         The Borrower has requested that the Lenders provide credit facilities for the purposes set forth  herein, and the Lenders are willing to do so on the terms and conditions set forth herein.         In  consideration  of  the  mutual  covenants  and  agreements  herein  contained,  the  parties  hereto  covenant and agree as follows:                                     ARTICLE I.                       DEFINITIONS AND ACCOUNTING TERMS         1.01  Defined Terms.         As used in this Agreement, the following terms shall have the meanings set forth below:         “Acquired  Indebtedness”  means  Indebtedness  of  a  Person  whose  assets  or  Equity  Interests are  acquired  by  the  Borrower  or  any  of  its  Subsidiaries  in  a  Permitted  Acquisition;  provided  that  such  Indebtedness (a) is either purchase money Indebtedness or a capital lease with respect to equipment or  mortgage financing with respect to real property, (b) was in existence prior to the date of such Permitted  Acquisition,  and  (c)  was  not  incurred  in  connection  with,  or  in  contemplation  of,  such  Permitted  Acquisition.         “Acquisition”, by any Person, means the acquisition by such Person, in a single transaction or in a  series of related transactions, of either (a) all or any substantial portion of the property of, or a line of  business,  division  of  or  other  business  unit  of,  another  Person  or  (b)  at  least  a  majority  of  the  Voting  Stock of another Person, in each case whether or not involving a merger or consolidation with such other  Person.         “Administrative Agent” means Bank of America in its capacity as administrative agent under any  of the Loan Documents, or any successor administrative agent.         “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 11.02 or such other address or account as the Administrative Agent may  from time to time notify the Borrower and the Lenders.         “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form  of Exhibit 11.06(b)(iv) or any other form approved by the Administrative Agent.         “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified.         “Aggregate  Revolving  Commitments”  means  the  Revolving  Commitments  of  all  the  Lenders.   The  initial  amount  of  the  Aggregate  Revolving  Commitments  in  effect  on  the  Closing  Date  is  $300,000,000.    CHAR1\1593539v8  





 






      “Agreement” means this Credit Agreement.         “Alternative  Currency”  means,  with  respect  to  Letters  of  Credit,  each  of  Sterling,  Canadian  Dollar,  Euro  or  Australian  Dollar  and  each  other  currency  (other  than  Dollars)  that  is  approved  in  accordance with Section 1.08; provided that for each Alternative Currency, such requested currency is an  Eligible Currency.         “Alternative Currency Equivalent” means, at any time, with respect to any amount denominated  in  Dollars,  the  equivalent  amount  thereof  in  the  applicable  Alternative  Currency  as  determined  by  the  Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate  (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency  with Dollars.         “Applicable  Percentage”  means  with  respect  to  any  Lender  at  any  time,  with  respect  to  such  Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of  the  Aggregate  Revolving  Commitments  represented  by  such  Lender’s  Revolving  Commitment  at  such  time; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the  L/C  Issuer  to  make  L/C  Credit  Extensions  have  been  terminated  pursuant  to  Section  8.02  or  if  the  Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be  determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to  any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the  name  of  such  Lender  on  Schedule  2.01  or  in the Assignment  and  Assumption or other  documentation  pursuant to which such Lender becomes a party hereto, as applicable.  The Applicable Percentages shall  be subject to adjustment as provided in Section 2.15.         “Applicable  Rate”  means  the  following  percentages  per  annum,  based  upon  the  Consolidated  Leverage  Ratio  as  set  forth  in  the  most  recent  Compliance  Certificate  received  by  the  Administrative  Agent pursuant to Section 6.02(b):              Consolidated                 Letter of Eurodollar Rate  Pricing Tier Leverage Ratio Commitment Fee Credit Fee Loans      Base Rate Loans     1         < 1.00:1       0.250%       1.00%       1.25%           0.25%     2        > 1.00:1 but                              0.275%       1.25%       1.50%           0.50%               < 1.50:1     3        > 1.50:1 but                              0.300%       1.50%       1.75%           0.75%               < 2.00:1     4        > 2.00:1 but                              0.325%       1.75%       2.00%           1.00%               < 2.50:1     5       > 2.50:1 but <                              0.350%       2.00%       2.25%           1.25%                3.00:1     6         > 3.00:1       0.375%       2.25%       2.50%           1.50%   Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage  Ratio shall become effective as of the first Business Day immediately following the date a Compliance  Certificate is delivered pursuant to Section 6.02(b); provided, however, that if a Compliance Certificate is  not delivered when due in accordance with such Section, then, upon the request of the Required Lenders,  Pricing Tier 5 shall apply as of the first Business Day after the date on which such Compliance Certificate  was required to have been delivered and shall remain in effect until the first Business Day immediately  following the date on which such Compliance Certificate is delivered in accordance with Section 6.02(b),  whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Leverage  Ratio contained in such Compliance Certificate.  The Applicable Rate in effect from the Closing Date                                        2  CHAR1\1593539v8  





 






through the first Business Day immediately following the date a Compliance Certificate is required to be  delivered  pursuant  to  Section  6.02(b)  for  the  fiscal  quarter  ending  June 30,  2018  shall  be  determined  based  upon  Pricing  Tier 1.   Notwithstanding  anything  to  the  contrary  contained  in  this  definition,  the  determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).         “Applicable Time” means, with respect to any payments in any Alternative Currency, the local  time in the place of settlement for such Alternative Currency as may be determined by the Administrative  Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in  accordance with normal banking procedures in the place of payment.         “Approved Customer List Acquisition” means the acquisition by the Borrower or one of the Loan  Parties of the customer list of a Person, provided that (i) no Default or Event of Default has occurred or  would result from such acquisition; and (ii) to the best of the Borrower’s actual knowledge at the time of  such acquisition the business associated with the acquired customer list will be profitable.         “Approved  Fund”  means  any  Fund  that  is  administered  or  managed  by  (a)  a  Lender,  (b)  an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.         “Arrangers” means MLPFS, PNC Capital Markets LLC and Wells Fargo Securities, LLC, in their  capacity as joint lead arrangers and joint bookrunners.         “Assignment and  Assumption”  means an  assignment  and  assumption  entered  into  by  a  Lender  and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)),  and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06(b) or any other form  (including  electronic  documentation  generated  by  use  of  an  electronic  platform)  approved  by  the  Administrative Agent.         “Attributable Indebtedness” means, with respect to any Person on any date, (a) in respect of any  capital lease, the capitalized amount thereof that would appear on a balance sheet of such Person prepared  as  of  such  date  in  accordance  with  GAAP,  (b)  in  respect  of  any  Synthetic  Lease  Obligation,  the  capitalized  amount  of  the  remaining  lease  payments  under  the  relevant  lease  that  would  appear  on  a  balance  sheet  of  such  Person  prepared  as  of  such  date  in  accordance  with  GAAP  if  such  lease  were  accounted for as a capital lease, (c) in respect of any Securitization Transaction, the outstanding principal  amount of such financing, after taking into account reserve accounts and making appropriate adjustments,  determined by the Administrative Agent in its reasonable judgment and (d) in respect of any Sale and  Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied  in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.         “Audited  Financial  Statements”  means  the  audited  consolidated  balance  sheet of  the  Borrower  and its Subsidiaries for the fiscal year ended December 31, 2017, and the related consolidated statements  of income or operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such  fiscal year, including the notes thereto.         “Australian Dollar” means the lawful currency of Australia.          “Availability Period” means, with respect to the Revolving Commitments, the period from and  including  the  Closing  Date  to  the  earliest  of  (a)  the  Maturity  Date,  (b)  the  date  of  termination  of  the  Aggregate  Revolving  Commitments  pursuant  to  Section  2.06,  and  (c)  the  date  of  termination  of  the  commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit  Extensions pursuant to Section 8.02.                                         3  CHAR1\1593539v8  





 






      “Bail-In  Action”  means  the  exercise  of  any  Write-Down  and  Conversion  Powers  by  the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In  Legislation Schedule.         “Bank of America” means Bank of America, N.A. and its successors.         “Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a)  the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced  from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate plus 1.0%; provided  that  if  the  Base  Rate  shall  be  less  than  zero,  such  rate  shall  be  deemed  zero  for  purposes  of  this  Agreement.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank  of America’s costs and desired return, general economic conditions and other factors, and is used as a  reference point for pricing some loans, which may be priced at, above, or below such announced rate.   Any  change  in  such  “prime  rate”  announced  by  Bank  of  America  shall  take  effect  at  the  opening  of  business on the day specified in the public announcement of such change.         “Base Rate Loan” means a Loan that bears interest based on the Base Rate.         “Beneficial  Ownership  Certification”  means  a  certification  regarding  beneficial  ownership  required  by  the  Beneficial  Ownership  Regulation,  which  certification  shall  be  substantially  similar  in  form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers  published  jointly,  in  May  2018,  by  the  Loan  Syndications  and  Trading  Association  and  Securities  Industry and Financial Markets Association.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title  I  of  ERISA,  (b)  a  “plan” as  defined in  Section  4975 of the  Internal  Revenue  Code or (c)  any  Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of  ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or  “plan”.         “Borrower” has the meaning specified in the introductory paragraph hereto.         “Borrower Materials” has the meaning specified in Section 6.02.         “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the  case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to  Section 2.01.         “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks  are  authorized  to  close  under  the  Laws  of,  or  are  in  fact  closed  in,  the  state  where  the  Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any  such day that is also a day on which dealings in Dollar deposits are conducted by and between banks in  the London interbank eurodollar market.         “Canadian Dollar” and “CAD” means the lawful currency of Canada.                                         4  CHAR1\1593539v8  





 






      “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for  the  benefit  of  one  or  more  of  the  L/C  Issuer  or  the  Lenders,  as  collateral  for  L/C  Obligations  or  obligations of the Lenders to fund participations in respect of L/C Obligations, (a) cash or deposit account  balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to  the Administrative Agent and the L/C Issuer and/or (c) if the Administrative Agent and the L/C Issuer  shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form  and substance reasonably satisfactory to the Administrative Agent and the L/C Issuer.  “Cash Collateral”  shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral  and other credit support.         “Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or  insured  by the  United  States  or  any  agency  or  instrumentality  thereof  (provided  that the full faith  and  credit of the United States is pledged in support thereof) having maturities of not more than twelve (12)  months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i)  any  Lender,  (ii)  any  domestic  commercial  bank  of  recognized  standing  having  capital  and  surplus  in  excess of $500,000,000 or (iii) any bank whose short term commercial paper rating from S&P is at least  A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank  being an “Approved  Bank”), in each  case  with  maturities  of  not  more than 270  days from  the  date  of  acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the  parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation  rated  A-1  (or  the  equivalent  thereof)  or  better  by  S&P  or  P-1  (or  the  equivalent  thereof)  or  better  by  Moody’s and maturing within six (6) months of the date of acquisition, (d) repurchase agreements entered  into by any Person with a bank or trust company (including any of the Lenders) or recognized securities  dealer  having  capital  and  surplus  in  excess  of  $500,000,000  for  direct  obligations  issued  by  or  fully  guaranteed by the United States in which such Person shall have a perfected first priority security interest  (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least  100%  of  the  amount  of  the  repurchase  obligations  and  (e)  investments,  classified  in  accordance  with  GAAP as current assets, in money market investment programs registered under the Investment Company  Act  of  1940  which  are  administered  by  reputable  financial  institutions  having  capital  of  at  least  $500,000,000  and  the  portfolios  of  which  are  limited  to  Investments  of  the  character  described  in  the  foregoing subdivisions (a) through (d).         “Cash Management Agreement” means any agreement that is not prohibited by the terms hereof  to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards,  debit  cards,  p-cards  (including  purchasing  cards  and  commercial  cards),  funds  transfer,  automated  clearinghouse,  zero  balance  accounts,  returned  check  concentration,  controlled  disbursement,  lockbox,  account reconciliation and reporting and trade finance services and other cash management services.         “Cash  Management  Bank”  means  any  Person  that  (a)  at  the  time  it  enters  into  a  Cash  Management  Agreement,  is  a  Lender  or  the  Administrative  Agent  or  an  Affiliate  of  a  Lender  or  the  Administrative Agent, (b) in the case of any Cash Management Agreement in effect on or prior to the  Closing  Date,  is,  as  of  the  Closing  Date  or  within  thirty  (30)  days  thereafter,  a  Lender  or  the  Administrative  Agent  or  an  Affiliate  of  a  Lender  or  the  Administrative  Agent  and  a  party  to  a  Cash  Management Agreement  or  (c)  within thirty  (30)  days  after the time  it  enters into  the  applicable  Cash  Management Agreement, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the  Administrative Agent, in each case, in its capacity as a party to such Cash Management Agreement.         “Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the  adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation,  implementation or application thereof by any Governmental Authority or (c) the making or issuance of  any request, rule, guideline or directive (whether or not having the force of Law) by any Governmental                                        5  CHAR1\1593539v8  





 






Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street  Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued  in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for  International  Settlements,  the  Basel  Committee  on  Banking  Supervision  (or  any  successor  or  similar  authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in  each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.         “Change of Control” means an event or series of events by which:               (a)   any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of        the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or        its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary        or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and        13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed        to have “beneficial ownership” of all Equity Interests that such person or group has the right to        acquire,  whether  such  right is  exercisable  immediately  or  only  after  the  passage  of  time  (such        right,  an  “option  right”)),  directly  or  indirectly,  of  Voting  Stock  of  the  Borrower  representing        35% or more of the combined voting power of all Voting Stock of the Borrower on a fully diluted        basis (and taking into account all such securities that such person or group has the right to acquire        pursuant to any option right); or               (b)   during  any  period  of  twenty-four  (24)  consecutive  months,  a  majority  of  the        members of the board of directors or other equivalent governing body of the Borrower cease to be        composed of individuals (i) who were members of that board or equivalent governing body on the        first day of such period, (ii) whose election or nomination to that board or equivalent governing        body was approved by individuals referred to in clause (i) above constituting at the time of such        election  or  nomination  at  least  a  majority  of  that  board  or  equivalent  governing  body  or  (iii)        whose election or nomination to that board or other equivalent governing body was approved by        individuals  referred  to in  clauses  (i) and  (ii)  above  constituting  at  the  time  of such  election or        nomination at least a majority of that board or equivalent governing body.         “Closing Date” means the date hereof.         “Collateral” means a collective reference to all property with respect to which Liens in favor of  the Administrative Agent, for the benefit of itself and the other holders of the Obligations, are purported  to be granted pursuant to and in accordance with the terms of the Collateral Documents.         “Collateral  Documents”  means  a  collective  reference  to  the  Security  Agreement  and  other  security documents as may be executed and delivered by any Loan Party pursuant to the terms of Section  6.14 or any of the Loan Documents.         “Commitment” means, as to each Lender, the Revolving Commitment of such Lender.         “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).         “Compliance Certificate” means a certificate substantially in the form of Exhibit 6.02.         “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 Capital Expenditures” means $10,000,000 in any four (4) quarter period.                                         6  CHAR1\1593539v8  





 






       “Consolidated Current Portion of Long Term Debt” means that portion of Consolidated Funded  Indebtedness payable within one (1) year from the date of such determination, determined in accordance  with GAAP.         “Consolidated  EBITDA”  means,  for  any  period,  for  the  Borrower  and  its  Subsidiaries  on  a  consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to  the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for  such period (including fees for Letters of Credit payable pursuant to Section 2.03, but net of capitalized  interest  expense),  (ii)  the  provision  for  federal,  state,  local  and  foreign  income  taxes  payable  for  such  period, (iii) depreciation and amortization expense for such period, (iv) non-cash expenses resulting from  the grant of stock options to employees of any Loan Party or its Subsidiaries or the issuance of restricted  stock to employees of any Loan Party or its Subsidiaries, (v) non-recurring, customary transaction fees,  closing  bonuses,  brokerage  fees and  reasonable  out of pocket  expenses  incurred during such  period  in  connection with a Permitted Acquisition in an aggregate amount not to exceed $10,000,000 in any four  fiscal quarter period, (vi) any extraordinary or non-recurring non-cash expenses or losses, and (vii) non- recurring cloud-based software implementation costs in an aggregate amount not to exceed $7,000,000,  and minus (b) to the extent included in calculating such Consolidated Net Income: (i) the sum of (x) any  extraordinary, unusual or non-recurring non-cash income or gains and (y) any cash payments made during  such period in respect of items described in clause (a)(viii) above subsequent to the fiscal quarter in which  the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net  Income.          “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of  (a) the sum of (i) Consolidated EBITDA for the most recently completed four (4) fiscal quarters minus  (ii)  Restricted  Payments  made  in  cash  to  any  third  party  (other  than  a  Loan  Party  or  any  Subsidiary  thereof),  in  each  case,  pursuant  to  Section  7.06(c)  –  (e)  during  such  period  minus  (iii)  Consolidated  Capital  Expenditures  for  such  period  minus  (iv)  income  taxes  paid  in  cash  during  such  period  to  (b)  Consolidated Fixed Charges for the most recently completed four (4) fiscal quarters.         “Consolidated Fixed Charges” means, for any period, for the Borrower and its Subsidiaries on a  consolidated basis, an amount equal to the sum of (a) the cash portion of Consolidated Interest Charges  for such period plus (b) Consolidated Current Portion of Long Term Debt.         “Consolidated Funded Indebtedness” means, as of any date of determination with respect to the  Borrower  and  its  Subsidiaries  on  a  consolidated  basis,  without  duplication,  the  sum  of:   (a)  the  outstanding  principal  amount  of  all  obligations  for  borrowed  money  (including  Obligations)  and  all  obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the  maximum amount available to be drawn under issued and outstanding letters of credit (including standby  and  commercial),  bankers’  acceptances,  bank  guaranties  and  similar  instruments  (but  excluding  any  surety bonds); (c) all obligations in respect of the deferred purchase price of property or services (other  than trade accounts payable in the ordinary course of business); (d) all purchase money Indebtedness; (e)  all Attributable Indebtedness; (f) all obligations to purchase, redeem, retire, defease or otherwise make  any  payment  prior  to  the  Maturity  Date  in  respect  of  any  Equity  Interests,  valued,  in  the  case  of  a  redeemable  preferred  interest, at  the  greater  of  its  voluntary  or  involuntary  liquidation  preference  plus  accrued and unpaid dividends; (g) all Guarantees with respect to Indebtedness of the types specified in  clauses (a) through (f) above of another Person; and (h) all Indebtedness of the types referred to in clauses  (a)  through  (g)  above  of  any  partnership  or  joint  venture  (other  than  a  joint  venture  that  is  itself  a  corporation or limited liability company) in which any Loan Party or any Subsidiary is a general partner  or joint venturer and/or has majority control of such partnership or joint venture, except to the extent that  Indebtedness  is  expressly  made  non-recourse  to  such  Person;  provided  that,  for  purposes  hereof,  the                                         7  CHAR1\1593539v8  





 






amount of such Indebtedness shall be limited to the amount of Indebtedness for which the Borrower and  its Subsidiaries are legally liable.         “Consolidated Interest Charges” means, for any period, for the Borrower and its Subsidiaries on a  consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related  expenses in connection with borrowed money (including capitalized interest) or in connection with the  deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP,  plus  (b)  the  portion  of  rent  expense  with  respect  to  such  period  under  capital  leases  that  is  treated  as  interest in accordance with GAAP plus (c) the implied interest component of Synthetic Lease Obligations  with respect to such period.         “Consolidated  Leverage  Ratio”  means,  as  of  any  date  of  determination,  the  ratio  of  (a)  Consolidated  Funded  Indebtedness  as  of  such  date  to  (b)  Consolidated  EBITDA  for  the  most  recently  completed four (4) fiscal quarters.         “Consolidated  Net  Income”  means,  for  any  period,  for  the  Borrower and  its  Subsidiaries  on  a  consolidated  basis,  net  income  (or  loss)  for  such  period;  provided  that  Consolidated  Net  Income  shall  exclude  (a)  extraordinary  gains  for  such  period  and  extraordinary  losses  for  such  period,  (b)  the  net  income of any Subsidiary during such period to the extent that the declaration or payment of dividends or  similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its  Organization Documents or any agreement, instrument or Law applicable to such Subsidiary during such  period, and (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary,  except that the Borrower’s equity in the net income of any such Person for such period shall be included  in  Consolidated  Net  Income  up  to  the  aggregate  amount  of  cash  actually  distributed  by  such  Person  during such period to the Borrower or a Subsidiary as a dividend or other distribution (and in the case of a  dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing  such amount to the Borrower as described in clause (b) of this proviso).         “Contractual Obligation” means, as to any Person, any provision of any security issued by such  Person or of any agreement, instrument or other undertaking to which such Person is a party or by which  it or any of its property is bound.         “Control”  means  the  possession,  directly  or  indirectly,  of  the  power  to  direct  or  cause  the  direction of the management or policies of a Person, whether through the ability to exercise voting power,  by  contract  or  otherwise.  “Controlling” and “Controlled”  have  meanings  correlative  thereto.   Without  limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if  such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having  ordinary voting power for the election of directors, managing general partners or the equivalent.         “Credit  Extension”  means  each  of  the  following:  (a)  a  Borrowing  and  (b)  an  L/C  Credit  Extension.         “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,  conservatorship,  bankruptcy,  assignment  for  the  benefit  of  creditors,  moratorium,  rearrangement,  receivership,  insolvency,  reorganization,  or  similar  debtor  relief  Laws  of  the  United  States  or  other  applicable jurisdictions from time to time in effect.         “Default”  means  any  event  or  condition  that  constitutes  an  Event  of  Default  or  that,  with  the  giving of any notice, the passage of time, or both, would be an Event of Default.                                          8  CHAR1\1593539v8  





 






      “Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per  annum  equal  to  2%  in  excess  of  the  rate  otherwise  applicable  thereto  and  (b) with  respect  to  any  Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus the  Applicable Rate for Revolving Loans that are Base Rate Loans plus 2%, in each case, to the fullest extent  permitted by applicable Law.         “Defaulting Lender” means, subject to Section 2.15(d), any Lender that (a) has failed to (i) fund  all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be  funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that  such failure is the result of such Lender’s determination that one or more conditions precedent to funding  (each of which conditions precedent, together with any applicable default, shall be specifically identified  in  such  writing)  has  not  been  satisfied,  or  (ii)  pay  to  the  Administrative  Agent,  the  L/C  Issuer,  the  Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in  respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the  date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline  Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a  public statement to that effect (unless such writing or public statement relates to such Lender’s obligation  to fund a Loan hereunder and states that such position is based on such Lender’s determination that a  condition precedent to funding (which condition precedent, together with any applicable default, shall be  specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three  (3)  Business  Days  after  written  request  by  the  Administrative  Agent  or  the  Borrower,  to  confirm  in  writing  to  the Administrative  Agent  and the  Borrower  that  it will  comply with its  prospective  funding  obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this  clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or  (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under  any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator,  assignee for the  benefit of  creditors  or  similar  Person charged  with reorganization  or liquidation of its  business  or  assets,  including  the  Federal  Deposit  Insurance  Corporation  or  any  other  state  or  federal  regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that  a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity  Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so  long  as  such  ownership  interest  does  not  result  in  or  provide  such  Lender  with  immunity  from  the  jurisdiction  of  courts  within  the  United  States  or  from  the  enforcement  of  judgments  or  writs  of  attachment  on  its  assets  or  permit  such  Lender  (or  such  Governmental  Authority)  to  reject,  repudiate,  disavow  or  disaffirm  any  contracts  or  agreements  made  with  such  Lender.   Any  determination  by  the  Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through  (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error,  and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(d)) as of the date  established therefor by the Administrative Agent in a written notice of such determination, which shall be  delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swingline Lender and each  other Lender promptly following such determination.         “Designated  Jurisdiction”  means  any  country  or  territory  to  the  extent  that  such  country  or  territory is the subject of any Sanction.         “Disposition”  or  “Dispose”  means  the  sale,  transfer,  license,  lease  or  other  disposition  of  any  property by any Loan Party or any Subsidiary, including any Sale and Leaseback Transaction and any  sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable  or any rights and claims associated therewith, but excluding any Recovery Event.         “Dollar” and “$” mean lawful money of the United States.                                        9  CHAR1\1593539v8  





 






      “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars,  such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent  amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may  be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date)  for the purchase of Dollars with such Alternative Currency.         “Domestic Subsidiary” means any Subsidiary that is organized under the Laws of any state of the  United States or the District of Columbia other than a Subsidiary that constitutes a FSHCO.         “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of  an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision  with its parent.         “EEA  Member  Country”  means  any  of  the  member  states  of  the  European  Union,  Iceland,  Liechtenstein, and Norway.         “EEA Resolution Authority” means any public administrative authority or any person entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee)  having  responsibility for the resolution of any EEA Financial Institution.         “Eligible  Assignee”  means  any  Person  that  meets  the  requirements  to  be  an  assignee  under  Sections 11.06(b) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).         “Eligible Currency” means any lawful currency other than Dollars that is readily available, freely  transferable and convertible into Dollars in the international interbank market available to the L/C Issuer  in such market and as to which a Dollar Equivalent may be readily calculated.  If, after the designation by  the L/C Issuer of any currency as an Alternative Currency, any change in currency controls or exchange  regulations or any change in the national or international financial, political or economic conditions are  imposed in the country in which such currency is issued, result in, in the reasonable opinion of the L/C  Issuer,  (a)  such  currency  no  longer  being  readily  available,  freely  transferable  and  convertible  into  Dollars,  (b)  a  Dollar  Equivalent  is  no  longer  readily  calculable  with  respect  to  such  currency,  (c)  providing such currency is impracticable for the L/C Issuer or (d) no longer a currency in which the L/C  Issuer is willing to make such Credit Extensions (each of (a), (b), (c), and (d) a “Disqualifying Event”),  then the Administrative Agent shall promptly notify the Borrower, and such country’s currency shall no  longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer exist.         “Environmental  Laws”  means  any  and  all  federal,  state,  local  and  foreign  statutes,  laws,  regulations,  ordinances,  rules,  judgments,  orders,  decrees,  permits,  concessions,  grants,  franchises,  licenses,  agreements  or  governmental  restrictions  relating  to  pollution  and  the  protection  of  the  environment or the release of any materials into the environment, including those related to hazardous  substances or wastes, air emissions and discharges to waste or public systems.         “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities), of any Loan Party or any  Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b)  the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,  (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials                                         10  CHAR1\1593539v8  





 






into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which  liability is assumed or imposed with respect to any of the foregoing.         “Equity Interests”  means, with respect to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase  or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in)  such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other  ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition  from such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member or trust interests therein), whether voting or nonvoting,  and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of  determination.         “ERISA” means the Employee Retirement Income Security Act of 1974.         “ERISA  Affiliate”  means  any  trade  or  business  (whether  or  not  incorporated)  under  common  control with the Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and  Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412  of the Internal Revenue Code).         “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal  of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a  plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or  a  cessation  of  operations  that  is  treated  as  such  a  withdrawal  under  Section  4062(e)  of  ERISA;  (c)  a  complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or  notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate,  the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, (e)  the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which  constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee  to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan  or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal  Revenue Code or Sections 303, 304 and 305 of ERISA, (h) the imposition of any liability under Title IV  of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the  Borrower  or  any  ERISA  Affiliate  or  (i)  a  failure  by  the  Borrower  or  any  ERISA  Affiliate  to  meet  all  applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not  waived, or the failure by the Borrower or any ERISA Affiliate to make any required contribution to a  Multiemployer Plan.         “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.         “Euro” and “€” mean the single currency of the Participating Member States.         “Eurodollar Rate” means:               (a)   for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum        equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which        rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen        page  (or  such  other  commercially  available  source  providing  such  quotations  as  may  be        designated by the Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at        approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of                                         11  CHAR1\1593539v8  





 






      such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with        a term equivalent to such Interest Period; and               (b)   for any interest rate calculation with respect to a Base Rate Loan on any date, the        rate per annum equal to the LIBOR Rate, at approximately 11:00 a.m., London time determined        two  (2)  Business  Days  prior  to  such  date  for  Dollar  deposits  with  a  term  of  one  month        commencing that day;         provided that (i) to the extent a comparable or successor rate is approved by the Administrative        Agent  in  connection  herewith,  the  approved  rate  shall  be  applied  in  a  manner  consistent  with        market practice; provided, further that to the extent such market practice is not administratively        feasible  for  the  Administrative  Agent,  such  approved  rate  shall  be  applied  as  otherwise        reasonably  determined  by  the  Administrative  Agent  and  in  a  manner  consistent  with  the        Administrative Agent’s application thereof with respect to comparable credit facilities with other        borrowers and (ii) if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero        for purposes of this Agreement.         “Eurodollar  Rate  Loan”  means  a  Loan  that  bears  interest  at  a  rate  based  on  clause  (a)  of  the  definition of “Eurodollar Rate.”         “Event of Default” has the meaning specified in Section 8.01.         “Excluded  Property”  means,  with  respect  to  any  Loan  Party,  (a)  any  owned  or  leased  real  property, (b) any IP Rights for which a perfected Lien thereon is not effected either by filing of a Uniform  Commercial Code financing statement or by appropriate evidence of such Lien being filed in either the  United  States  Copyright  Office  or  the  United  States  Patent  and  Trademark  Office,  (c)  any  personal  property (other than personal property described in clause (b) above and Equity Interests required to be  pledged to secure the Obligations pursuant to Section 6.14) for which the attachment or perfection of a  Lien thereon is not  governed  by  the  Uniform Commercial  Code, (d)  the Equity  Interests of any  direct  Foreign Subsidiary or FSHCO of any Loan Party to the extent not required to be pledged to secure the  Obligations pursuant to Section 6.14(a), (e) any property which, subject to the terms of Section 7.09, is  subject to a Lien of the type described in Section 7.01(i) pursuant to documents which prohibit such Loan  Party  from  granting  any  other  Liens  in  such  property,  (f)  motor  vehicles  and  other  assets  subject  to  certificates of title, (g) letter of credit rights (other than those that constitute supporting obligations as to  other Collateral) with a value of less than $500,000 individually, (h) commercial tort claims with a value  of less than $500,000 individually, (i) pledges and security interests prohibited by applicable Law, rule or  regulation  (to  the  extent  such  Law,  rule  or  regulation  is  effective  under  applicable  anti-assignment  provisions of the Uniform Commercial Code), other than proceeds and receivables thereof, (j) any general  intangible,  permit,  lease,  license  or  other  agreement,  instrument  or  any  property  subject  to  a  purchase  money  security  interest  or  similar  arrangement  to  the  extent  that  a  grant  of  a  security  interest  therein  would  violate  or  invalidate  such  general  intangible,  permit,  lease,  license  or  agreement,  instrument  or  purchase  money  arrangement  or  create  a  right  of  termination  in  favor  of  any  other  party  thereto  after  giving  effect  to  the  applicable  anti-assignment  provisions  of  the  Uniform  Commercial  Code,  the  assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding  such prohibition, and other than proceeds and receivables thereof; provided that (i) any such exclusion  described in this clause (j) shall only apply to the extent that any such prohibition could not be rendered  ineffective pursuant to the UCC or any other applicable Law (including Debtor Relief Laws) or principles  of equity and (ii) in the event of the termination or elimination of any such prohibition or the requirement  for any consent contained in any applicable Law, general intangible, permit, lease, license, contract or  other  instrument,  to  the  extent  sufficient  to  permit  any  such  item  to  become  Collateral,  or  upon  the  granting  of  any  such  consent,  or  waiving  or  terminating  any  requirement  for  such  consent,  a  security                                        12  CHAR1\1593539v8  





 






interest  in  such  general  intangible,  permit,  lease,  license,  contract  or  other  instrument  shall  be  automatically  and  simultaneously  granted  under  the  Security  Agreement  and  such  general  intangible,  permit, lease, license, contract or other instrument shall cease to be Excluded Property, (k) non-qualified  employee benefit plan assets and any deposit account that is used solely for payroll or related employee  benefits or withholding taxes or any trust account maintained solely for the benefit of unrelated persons,  (l)  the  Equity  Interests  of  Labor  Ready,  Inc.,  Worker’s  Assurance  of  Hawaii,  Inc.  and  TrueBlue,  Inc.  PAC,  and (m) those assets as to which the Administrative Agent and Borrower reasonably agree that the  cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the  Lenders of the security to be afforded thereby.         “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and  to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of  a  Lien  to  secure,  such  Swap  Obligation  (or  any  Guarantee  thereof)  is  or  becomes  illegal  under  the  Commodity Exchange Act or any rule, regulation or order of the Commodity Future Trading Commission  (or the application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to  constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after  giving effect to Section 10.08 and any other “keepwell”, support or other agreement for the benefit of  such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties)  at the time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with  respect to such Swap Obligation.  If a Swap Obligation arises under a Master Agreement governing more  than one Swap Contract, such exclusion shall apply to only the portion of such Swap Obligation that is  attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance  with the first sentence of this definition.         “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured  by  net  income  (however  denominated),  franchise  Taxes,  and  branch  profits  Taxes,  in  each  case,  (i)  imposed as a result of such Recipient being organized under the Laws of, or having its principal office or,  in  the  case  of  any  Lender,  its  Lending  Office  located  in,  the  jurisdiction  imposing  such  Tax  (or  any  political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S.  federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect  to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i)  such  Lender  acquires  such  interest  in  the  Loan  or  Commitment  (other than  pursuant  to  an  assignment  request by the Borrower under Section 11.13) or (ii) such Lender changes its Lending Office, except in  each case to the extent that, pursuant to Section 3.01(a)(ii), 3.01(a)(iii) or 3.01(c), amounts with respect to  such  Taxes  were  payable  either  to  such  Lender’s  assignor  immediately  before  such  Lender  became  a  party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to  such  Recipient’s  failure  to  comply  with  Section  3.01(e)  and  (d)  any  U.S.  federal  withholding  Taxes  imposed pursuant to FATCA.         “Existing  Credit  Agreement”  means  that  certain  Second  Amended  and  Restated  Credit  Agreement, dated as of June 30, 2014 (as amended or otherwise modified from time to time), among the  Borrower, certain direct and indirect subsidiaries of the Borrower party thereto as borrowers, the lenders  party thereto and the Administrative Agent, as administrative agent.         “Existing Letters of Credit” means the letters of credit set forth on Schedule 1.01 hereto.         “Facility Termination Date” means the date as of which all of the following shall have occurred:   (a) all Commitments have terminated, (b) all Obligations arising under the Loan Documents have been  paid  in  full  (other  than  contingent  indemnification  obligations),  and  (c)  all  Letters  of  Credit  have  terminated or expired (other than Letters of Credit that have been Cash Collateralized).                                        13  CHAR1\1593539v8  





 






      “FASB  ASC”  means  the  Accounting  Standards  Codification  of  the  Financial  Accounting  Standards Board.         “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Closing  Date  (or  any  amended  or  successor  version  that  is  substantively  comparable  and  not  materially  more  onerous  to  comply  with),  any  current  or  future  regulations  or  official  interpretations  thereof  and  any  agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.         “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the  rates on overnight federal funds transactions with members of the Federal Reserve System, as published  by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that  (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such  transactions on the next preceding Business Day as so published on the next succeeding Business Day, (b)  if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such  day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged  to Bank of America on such day on such transactions as determined by the Administrative Agent and (c)  if  the  Federal  Funds  Rate shall  be  less  than  zero,  such  rate  shall  be  deemed  zero  for  purposes  of  this  Agreement.         “Fee Letter” means the letter agreement, dated as of the Closing Date among the Borrower and  the Administrative Agent.         “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person,  and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a  jurisdiction  other  than  that  in  which  the  Borrower  is  resident  for  tax  purposes.   For  purposes  of  this  definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute  a single jurisdiction.         “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.         “FRB” means the Board of Governors of the Federal Reserve System of the United States.         “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C  Issuer,  such  Defaulting  Lender’s  Applicable  Percentage  of  the  outstanding  L/C  Obligations  other  than  L/C  Obligations  as  to  which  such  Defaulting  Lender’s  participation  obligation  has  been  reallocated  to  other  Lenders  or  Cash  Collateralized  in  accordance  with  the  terms  hereof,  and  (b)  with  respect  to  the  Swingline  Lender,  such  Defaulting  Lender’s  Applicable  Percentage  of  Swingline  Loans  other  than  Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders in accordance with the terms hereof.         “FSHCO” means any Subsidiary that owns no material assets other than the Equity Interests of  one or more Foreign Subsidiaries and/or of one or more FSHCOs.          “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing,  holding  or  otherwise investing  in  commercial loans  and  similar extensions  of  credit  in the  ordinary course of its activities.         “GAAP” means generally accepted accounting principles in the United States set forth from time  to  time  in  the  opinions  and  pronouncements  of  the  Accounting  Principles  Board  and  the  American  Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting  Standards  Board  (or  agencies  with  similar  functions  of  comparable  stature  and  authority  within  the                                         14  CHAR1\1593539v8  





 






accounting profession) including, without limitation, the FASB Accounting Standards Codification, that  are applicable to the circumstances as of the date of determination, consistently applied and subject to  Section 1.03.         “Governmental Authority” means the government of the United States or any other nation, or of  any  political  subdivision  thereof,  whether  state  or  local,  and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative,  judicial,  taxing,  regulatory  or  administrative  powers  or  functions  of or  pertaining  to  government  (including  any  supra- national bodies such as the European Union or the European Central Bank).         “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable  or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly,  and  including  any  obligation  of  such  Person,  direct  or  indirect,  (i)  to  purchase  or  pay  (or  advance  or  supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or  lease  property,  securities  or  services  for  the  purpose  of  assuring  the  obligee  in  respect  of  such  Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,  (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or  level  of  income  or  cash  flow  of  the  primary  obligor  so  as  to  enable  the  primary  obligor  to  pay  such  Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the  obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to  protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of  such  Person  securing  any  Indebtedness  or  other  obligation  of  any  other  Person,  whether  or  not  such  Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any  holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to  be  an  amount  equal  to the  stated  or determinable  amount  of the related  primary  obligation,  or  portion  thereof,  in  respect  of  which  such  Guarantee  is  made  or,  if  not  stated  or  determinable,  the  maximum  reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.   The term “Guarantee” as a verb has a corresponding meaning.         “Guarantors”  means,  collectively,  (a)  each  Material  Domestic  Subsidiary  of  the  Borrower  identified  as  a  “Guarantor”  on  the  signature  pages  hereto,  (b)  each  Person  that  joins  as  a  Guarantor  pursuant  to  Section  6.13  or  otherwise,  (c)  with  respect  to  (i)  Obligations  under  any  Secured  Hedge  Agreement,  (ii)  Obligations  under  any  Secured  Cash  Management  Agreement  and  (iii)  any  Swap  Obligation of a Specified Loan Party (determined before giving effect to Sections 10.01 and 10.08) under  the Guaranty, the Borrower, and (d) the successors and permitted assigns of the foregoing.         “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent and  the other holders of the Obligations pursuant to Article X.         “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas,  natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic  mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants  or compounds of any nature in any form regulated pursuant to any Environmental Law.         “Hedge Bank” means any Person that (i) at the time it enters into a Swap Contract, is a Lender or  the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (ii) in the case of any  Swap Contract in effect on or prior to the Closing Date, is, as of the Closing Date or within thirty (30)  days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative  Agent  and  a  party  to  a  Swap  Contract  or  (iii)  within  thirty  (30)  days  after  the  time  it  enters  into  the                                        15  CHAR1\1593539v8  





 






applicable Swap Contract, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the  Administrative Agent, in each case, in its capacity as a party to such Swap Contract; provided that in the  case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender),  such  Person  shall  be  considered  a  Hedge  Bank  only  through  the  stated  termination  date  (without  extension or renewal) of such Secured Hedge Agreement.         “Honor Date” has the meaning set forth in Section 2.03(c).         “IFRS”  means  international  accounting  standards  within  the  meaning  of  IAS  Regulation  1606/2002  to  the  extent  applicable  to  the  relevant  financial  statements  delivered  under  or  referred  to  herein.         “Incremental Facility” has the meaning specified in Section 2.16.         “Incremental Facility Amendment” has the meaning specified in Section 2.16.         “Incremental Request” has the meaning specified in Section 2.16.         “Incremental Revolving Commitments” has the meaning specified in Section 2.16.         “Incremental Revolving Loans” has the meaning specified in Section 2.16.         “Indebtedness”  means,  as  to  any  Person  at  a  particular  time,  without  duplication,  all  of  the  following, whether or not included as indebtedness or liabilities in accordance with GAAP:               (a)   all obligations for borrowed money and all obligations of such Person evidenced        by bonds, debentures, notes, loan agreements or other similar instruments;               (b)   the maximum amount of all direct or contingent obligations arising under letters        of credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar        instruments (but excluding any surety bonds);               (c)   the Swap Termination Value of any Swap Contract;               (d)   all obligations to pay the deferred purchase price of property or services (other        than trade accounts payable in the ordinary course of business and, for the avoidance of doubt,        other than royalty payments payable in the ordinary course of business in respect of exclusive and        non-exclusive licenses);               (e)   indebtedness (excluding prepaid interest thereon) secured by a Lien on property        owned or being purchased by such Person (including indebtedness arising under conditional sales        or other title retention agreements), whether or not such indebtedness shall have been assumed by        such  Person  or  is  limited  in  recourse;  provided  that  all  such  indebtedness  which  is  limited  to        recourse to such property shall be valued at the lesser of (i) the amount of such indebtedness and        (ii) the fair market value of such property;               (f)   all Attributable Indebtedness;               (g)   all  obligations  to  purchase,  redeem,  retire,  defease  or  otherwise  make  any        payment prior to the Maturity Date in respect of any Equity Interests, valued, in the case of a                                         16  CHAR1\1593539v8  





 






      redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference        plus accrued and unpaid dividends;               (h)   all Guarantees of such Person in respect of any of the foregoing; and               (i)   all Indebtedness of the types referred to in clauses (a) through (h) above of any        partnership  or  joint  venture  (other  than  a  joint  venture  that  is  itself  a  corporation  or  limited        liability  company)  in  which  such  Person  is  a  general  partner  or  joint  venturer,  unless  such        Indebtedness is expressly made non-recourse to such Person; provided that, for purposes hereof,        the amount of such Indebtedness shall be limited to the amount of Indebtedness for which the        Borrower and its Subsidiaries are legally liable.         “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to  any payment made by or on account of any obligation of any Loan Party under any Loan Document and  (b) to the extent not otherwise described in clause (a), Other Taxes.         “Indemnitee” has the meaning specified in Section 11.04(b).         “Information” has the meaning specified in Section 11.07.         “Interest Payment Date” means (a) as to any Eurodollar Rate Loan, the last day of each Interest  Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a  Eurodollar Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after  the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate  Loan (including a Swingline Loan), the last Business Day of each March, June, September and December  and the Maturity Date.         “Interest  Period”  means, as  to  each  Eurodollar Rate Loan, the period  commencing  on  the date  such  Eurodollar  Rate  Loan  is  disbursed  or  converted  to  or  continued  as  a  Eurodollar  Rate  Loan  and  ending on the date one (1), two (2), three (3) or six (6) months thereafter or, subject to the consent of all  of the Lenders, such other period that is twelve (12) months or less (in each case, subject to availability),  as selected by the Borrower in its Loan Notice; provided that:               (a)   any Interest Period that would otherwise end on a day that is not a Business Day        shall be extended to the next succeeding Business Day unless such Business Day falls in another        calendar month, in which case such Interest Period shall end on the next preceding Business Day;               (b)   any Interest Period that begins on the last Business Day of a calendar month (or        on a day for which there is no numerically corresponding day in the calendar month at the end of        such Interest Period) shall end on the last Business Day of the calendar month at the end of such        Interest Period; and               (c)   no Interest Period shall extend beyond the Maturity Date.         “Internal Revenue Code” means the Internal Revenue Code of 1986.         “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person,  (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other  acquisition  of  any  other  debt  or  equity  participation  or  interest  in,  another  Person,  including  any  partnership or joint venture interest in such other Person, or (c) an Acquisition.  For purposes of covenant                                         17  CHAR1\1593539v8  





 






compliance, the amount of any Investment shall be the amount actually invested, without adjustment for  subsequent increases or decreases in the value of such Investment.         “IP Rights” has the meaning specified in Section 5.17.         “IRS” means the United States Internal Revenue Service.         “ISP”  means,  with  respect  to  any  Letter  of  Credit,  the  “International  Standby  Practices  1998”  published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as  may be in effect at the time of issuance).         “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or  any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.         “Joinder  Agreement”  means  a  joinder  agreement  substantially  in  the  form  of  Exhibit  6.13  executed and delivered by a Domestic Subsidiary in accordance with the provisions of Section 6.13 or  any other documents as the Administrative Agent shall deem appropriate for such purpose.         “Judgment Currency” has the meaning specified in Section 11.21         “Laws”  means,  collectively,  all  international,  foreign,  federal,  state  and  local  statutes,  treaties,  rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,  including the interpretation or administration thereof by any Governmental Authority charged with the  enforcement,  interpretation  or  administration  thereof,  and  all  applicable  administrative  orders,  directed  duties,  requests,  licenses,  authorizations  and  permits  of,  and  agreements  with,  any  Governmental  Authority, in each case whether or not having the force of Law (but that are binding upon such Person).         “L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in  any  L/C  Borrowing  in  accordance  with  its  Applicable  Percentage.   All  L/C  Advances  shall  be  denominated in Dollars.         “L/C  Borrowing”  means  an  extension  of  credit  resulting  from  a  drawing  under  any  Letter  of  Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving  Loans.  All L/C Borrowings shall be denominated in Dollars.         “L/C Commitment” means, as to the L/C Issuer, its obligation to issue Letters of Credit pursuant  to Section 2.03 in an aggregate principal amount at any one time outstanding not to exceed the amount set  forth  opposite  its  name  on  Schedule  2.03,  as  such  amount  may  be  adjusted  from  time  to  time  in  accordance with this Agreement.           “L/C  Credit  Extension”  means,  with  respect  to  any  Letter  of  Credit,  the  issuance  thereof  or  extension of the expiry date thereof, or the increase of the amount thereof.         “L/C Issuer” means Bank of America, through itself or through one of its designated Affiliates or  branch offices, in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of  Credit hereunder.         “L/C Obligations” means, as at any date of determination, the aggregate amount available to be  drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including  all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of                                         18  CHAR1\1593539v8  





 






Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  For all  purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but  any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter  of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.         “Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each  other Person that becomes a “Lender” in accordance with this Agreement and their successors and assigns  and, unless the context requires otherwise, includes the Swingline Lender.         “Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office  or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other  office or offices as such Person may from time to time notify the Borrower and the Administrative Agent,  which office may include any Affiliate of such Person or any domestic or foreign branch of such Person  or such affiliate.           “Letter of Credit” means any standby letter of credit issued hereunder providing for the payment  of cash upon the honoring of a presentation thereunder and shall include the Existing Letters of Credit.   Letters of Credit may be issued in Dollars or in an Alternative Currency.         “Letter  of  Credit  Application”  means  an  application  and  agreement  for  the  issuance  or  amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.         “Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date  then in effect (or, if such day is not a Business Day, the next preceding Business Day).         “Letter of Credit Fee” has the meaning specified in Section 2.03(h).         “Letter of Credit Sublimit” means an amount equal to the lesser of (a) $125,000,000 and (b) the  Aggregate Revolving Commitments.  The Letter of Credit Sublimit is part of, and not in addition to, the  Aggregate Revolving Commitments.         “Leverage Increase Period” has the meaning specified in Section 7.11.         “LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative  Agent  designates  to  determine  LIBOR  (or  such  other  commercially  available  source  providing  such  quotations as may be designated by the Administrative Agent from time to time).         “LIBOR  Successor  Rate  Conforming  Changes”  means,  with  respect  to  any  proposed  LIBOR  Successor  Rate,  any  conforming  changes  to  the  definition  of  Base  Rate,  Interest  Period,  timing  and  frequency of determining rates and making payments of interest and other administrative matters as may  be  appropriate,  in  the  discretion  of  the  Administrative  Agent,  to  reflect  the  adoption  of  such  LIBOR  Successor  Rate  and  to  permit  the  administration  thereof  by  the  Administrative  Agent  in  a  manner  substantially consistent with market practice (or, if the Administrative Agent determines that adoption of  any  portion  of  such  market  practice  is  not  administratively  feasible  or  that  no  market  practice  for  the  administration  of  such  LIBOR  Successor  Rate  exists,  in  such  other  manner  of  administration  as  the  Administrative Agent determines in consultation with the Borrower).         “Lien”  means  any  mortgage,  pledge,  hypothecation,  assignment,  deposit  arrangement,  encumbrance,  lien  (statutory  or  other),  charge,  or  preference,  priority  or  other  security  interest  or  preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including  any conditional sale or other title retention agreement, any easement, right of way or other encumbrance                                         19  CHAR1\1593539v8  





 






on title to real property, and any financing lease having substantially the same economic effect as any of  the foregoing).         “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a  Revolving Loan or Swingline Loan, and shall include as the context requires, any Incremental Revolving  Loan.         “Loan  Documents”  means  this  Agreement,  each  Note,  each  Issuer  Document,  each  Joinder  Agreement,  the  Collateral  Documents,  each  Incremental  Facility  Amendment and  the  Fee  Letter  (but  specifically excluding Secured Hedge Agreements and any Secured Cash Management Agreements).        “Loan Notice” means a notice of (a) a Borrowing of Revolving Loans, (b) a conversion of Loans  from  one  Type  to  the  other,  or  (c)  a  continuation  of  Eurodollar  Rate  Loans,  in  each  case  pursuant  to  Section 2.02(a), which shall be substantially in the form of Exhibit 2.02 or such other form as may be  approved  by  the  Administrative  Agent  (including  any  form  on  an  electronic  platform  or  electronic  transmission  system  as  shall  be  approved  by  the  Administrative  Agent)  appropriately  completed  and  signed by a Responsible Officer of the Borrower.         “Loan Parties” means, collectively, the Borrower and each Guarantor.         “Master Agreement” has the meaning specified in the definition of “Swap Contract.”         “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect  upon, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of  the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies  of the Administrative Agent or any Lender under any material Loan Document, or of the ability of any  Loan Party to perform its material obligations under any Loan Document to which it is a party; or (c) a  material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party  of any material Loan Document to which it is a party.         “Material Domestic Subsidiary” means, as of any date of determination, any Domestic Subsidiary  that (a) contributed more than 5% of the Borrower and its Subsidiaries’ consolidated revenues for such  period or (b) contributed more than 5% of the Consolidated EBITDA of the Borrower and its Subsidiaries  for such  period;  provided that  (x) if the  aggregate  revenue  of the  Borrower and  all Material  Domestic  Subsidiaries represents less than 90% of the total revenue of the Borrower and its Domestic Subsidiaries  for  the  most  recently  completed  four  (4)  fiscal  quarters  of  the  Borrower  or  (y)  if  the  aggregate  Consolidated EBITDA of the Borrower and all Material Domestic Subsidiaries represents less than 90%  of the total Consolidated EBITDA of the Borrower and its Domestic Subsidiaries for the most recently  completed  four  (4)  fiscal  quarters  of  the  Borrower,  then  in  either  case,  the  Borrower  shall  identify  additional  Domestic  Subsidiaries  to  constitute  Material  Domestic  Subsidiaries  such  that  the  foregoing  90% test is satisfied (or, if the 90% test is not satisfied with all Domestic Subsidiaries, then all Domestic  Subsidiaries of the Borrower shall constitute “Material Domestic Subsidiaries”).          “Maturity Date” means as to the Revolving Loans, Swingline Loans and Letters of Credit (and  the related L/C Obligations), July 13, 2023; provided, however, that, in each case, if such date is not a  Business Day, the Maturity Date shall be the next preceding Business Day.         “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during any period  when a Lender constitutes a Defaulting Lender, an amount equal to 105% of the Fronting Exposure of the  L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash                                         20  CHAR1\1593539v8  





 






Collateral consisting of cash or deposit account balances provided in accordance with the provisions of  Section  2.14(a)(i),  (a)(ii)  or  (a)(iii),  an  amount  equal  to  105%  of  the  Outstanding  Amount  of  all  L/C  Obligations, and (c) otherwise, an amount reasonably determined by the Administrative Agent and the  L/C Issuer in their sole discretion.         “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.         “Multiemployer  Plan”  means  any  employee  benefit  plan  of  the  type  described  in  Section  4001(a)(3)  of  ERISA,  to  which  the  Borrower  or  any  ERISA  Affiliate  makes  or  is  obligated  to  make  contributions,  or  during  the  preceding  five  (5)  plan  years,  has  made  or  been  obligated  to  make  contributions.         “Multiple  Employer  Plan”  means  a  Plan  which  has  two  (2)  or  more  contributing  sponsors  (including the Borrower or any ERISA Affiliate) at least two (2) of whom are not under common control,  as such a plan is described in Section 4064 of ERISA.         “Non-Consenting  Lender”  means  any  Lender  that  does  not  approve  any  consent,  waiver  or  amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the  terms of Section 11.01 and (b) has been approved by the Required Lenders.         “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.         “Note” has the meaning specified in Section 2.11(a).         “Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall  be substantially in the form of Exhibit 2.05 or such other form as may be approved by the Administrative  Agent  (including  any  form  on  an  electronic  platform  or  electronic  transmission  system  as  shall  be  approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of  the Borrower.         “Obligations”  means with respect to  each  Loan  Party  (i)  all  advances to,  and  debts, liabilities,  obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with  respect to any Loan or Letter of Credit, and (ii) all obligations of any Loan Party or any Subsidiary owing  to a Cash Management Bank or a Hedge Bank in respect of Secured Cash Management Agreements or  Secured  Hedge  Agreements,  in  each  case  identified  in  clauses  (i)  and  (ii)  whether  direct  or  indirect  (including those acquired by assumption), absolute or contingent, due or to become due, now existing or  hereafter arising and including interest and fees that accrue after the commencement by or against any  Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person  as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such  proceeding; provided, however, that the “Obligations” of a Loan Party shall exclude any Excluded Swap  Obligations with respect to such Loan Party.         “OFAC”  means  the  Office  of  Foreign  Assets  Control  of  the  United  States  Department  of  the  Treasury.         “Organization Documents” means, (a) with respect to any corporation, the certificate or articles  of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any  non-U.S.  jurisdiction);  (b) with  respect  to  any  limited  liability  company,  the  certificate  or  articles  of  formation or organization and operating agreement or limited liability company agreement (or equivalent  or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership,                                         21  CHAR1\1593539v8  





 






joint  venture,  trust  or  other  form  of  business  entity,  the  partnership,  joint  venture  or  other  applicable  agreement of formation or organization (or equivalent or comparable documents with respect to any non- U.S.  jurisdiction)  and  (d) with  respect  to  all  entities,  any  agreement,  instrument,  filing  or  notice  with  respect thereto filed in connection with its formation or organization with the applicable Governmental  Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with  respect to any non-U.S. jurisdiction).         “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections  arising  from  such  Recipient  having  executed,  delivered,  become  a  party  to,  performed  its  obligations under, received payments under, received or perfected a security interest under, engaged in  any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any  Loan or Loan Document).         “Other  Taxes”  means  all  present  or  future  stamp,  court  or  documentary,  intangible,  recording,  filing  or  similar  Taxes  that  arise  from  any  payment  made  under,  from  the  execution,  delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).         “Outstanding  Amount”  means  (a)  with  respect  to  any  Loans  on  any  date,  the  aggregate  outstanding  principal  amount  thereof  after  giving  effect  to  any  borrowings  and  prepayments  or  repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date,  the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date  after  giving  effect  to  any  L/C  Credit  Extension  occurring  on  such  date  and  any  other  changes  in  the  aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by  the Borrower of Unreimbursed Amounts.         “Participant” has the meaning specified in Section 11.06(d).         “Participant Register” has the meaning specified in Section 11.06(d).         “Participating Member State” means any member state of the European Union that has the Euro  as  its  lawful  currency  in  accordance  with  legislation of  the  European Union  relating to  Economic  and  Monetary Union.         “PBGC” means the Pension Benefit Guaranty Corporation.         “Pension Act” means the Pension Protection Act of 2006.         “Pension  Funding Rules” means the  rules of the  Internal  Revenue  Code  and ERISA  regarding  minimum  required  contributions  (including  any  installment  payment  thereof)  to  Pension  Plans  and  set  forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the  Internal  Revenue  Code  and  Section  302  of  ERISA,  each  as  in  effect  prior  to  the  Pension  Act  and,  thereafter, Section 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304  and 305 of ERISA.         “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or  a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate  and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section  412 of the Internal Revenue Code.                                         22  CHAR1\1593539v8  





 






      “Permitted Acquisition” means an Investment consisting of an Acquisition by any Loan Party or  any Subsidiary; provided that (a) no Event of Default shall have occurred and be continuing or would  result from such Acquisition, (b) the property acquired (or the property of the Person acquired) in such  Acquisition is used or useful in the same or a similar line of business as the Borrower and its Subsidiaries  were engaged in on the Closing Date (or any reasonable extensions or expansions thereof), (c) in the case  of an Acquisition of the Equity Interests of another Person, the board of directors (or other comparable  governing body) of such other Person shall have duly approved such Acquisition, (d) the Borrower shall  have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that the  Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 recomputed as  of the end of the period of the four (4) fiscal quarters most recently ended for which the Borrower has  delivered financial statements pursuant to Section 6.01(a) or (b) after giving effect to such Acquisition on  a  Pro  Forma  Basis,  (e)  the  representations  and  warranties  made  by  the  Loan  Parties  in  each  Loan  Document  shall  be  true  and  correct  in  all  material  respects  at  and  as  if  made  as  of  the  date  of  such  Acquisition  (after  giving  effect  thereto)  except  to  the  extent  that  such  representations  and  warranties  specifically refer to a certain date, in which case they shall be true and correct in all material respects (or  if  qualified  by  materiality  or  Material  Adverse  Effect,  in  all  respects)  as  of  such  date,  (f)  if  such  transaction  involves  the  purchase  of  an  interest  in  a  partnership  between  any  Loan  Party  as  a  general  partner and entities unaffiliated with the Borrower as the other partners, such transaction shall be effected  by  having  such  equity  interest  acquired  by  a  corporate  holding  company  (or  entity  having  similar  limitations on liability of equity holders) directly or indirectly wholly owned by such Loan Party newly  formed  for  the  sole  purpose  of  effecting  such  transaction,  and  (g)  the  aggregate  cash  and  non-cash  consideration (including assumed Indebtedness, the good faith estimate by the Borrower of the maximum  amount  of  any  deferred  purchase  price  obligations  (including  any  earn  out  payments)  and  Equity  Interests) for all Acquisitions of non-Loan Parties occurring during the term of this Agreement shall not  exceed $35,000,000.         “Permitted Intercompany Advances” means loans or equity capital infusions made by (a) a Loan  Party to another Loan Party, (b) a Subsidiary that is not a Loan Party to another Subsidiary that is not a  Loan Party, and (c) a Loan Party to a Subsidiary that is not a Loan Party to the extent made in the normal  course of business to fund the day to day operations of such Subsidiary.         “Permitted  Liens”  means,  at  any  time,  Liens  in  respect  of  property  of  any  Loan  Party  or  any  Subsidiary permitted to exist at such time pursuant to the terms of Section 7.01.         “Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of business; (b)  Dispositions  of  property  to  the  Borrower  or  any  Subsidiary;  provided  that  if  the  transferor  of  such  property is a Loan Party then the transferee thereof must be a Loan Party; (c) Dispositions of accounts  receivable in connection with the collection or compromise thereof; (d) Dispositions of machinery and  equipment obsolete or no longer used or useful in the conduct of business of the Loan Parties and their  Subsidiaries that are Disposed of in the ordinary course of business; (e) licenses, sublicenses, leases or  subleases granted to others not interfering in any material respect with the business of the Borrower and  its Subsidiaries; (f) the sale or disposition of Cash Equivalents in a manner not prohibited by the terms of  this Agreement or the other Loan Documents; (g) granting of Liens permitted under this Agreement and  the  other  Loan  Documents;  (h)  the  leasing  or  subleasing  of  assets  of  the  Borrower  or  any  Subsidiary  thereof in the ordinary course of business; (i) the sale or issuance of Equity Interests of the Borrower; (j)  the lapse of intellectual property to the extent not economically desirable in the conduct of the Borrower’s  and its Subsidiaries’ business; (k) the making of a Restricted Payment permitted to be made under this  Agreement or any other Loan Document; (l) the making of any Investment permitted to be made under  this Agreement or any other Loan Document, including without limitation the capitalization of a newly- formed Subsidiary or funding of initial operations thereof to the extent permitted under this Agreement;                                         23  CHAR1\1593539v8  





 






and  (m)  the  transfer  of  the  Equity  Interests  of  Foreign  Subsidiaries  owned  by  Staff  Management  Solutions, LLC on the Closing Date to any Foreign Subsidiary of the Borrower.         “Person”  means any  natural  person, corporation, limited liability  company,  trust, joint  venture,  association, company, partnership, Governmental Authority or other entity.         “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including  a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to  which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.         “Platform” has the meaning specified in Section 6.02.         “Pro  Forma  Basis”  means,  with  respect to  any  transaction, that for  purposes  of  calculating the  financial  covenants  set  forth  in  Section  7.11,  such  transaction  (including  the  incurrence  of  any  Indebtedness therewith) shall be deemed to have occurred as of the first day of the most recent four (4)  fiscal quarter period preceding the date of such transaction for which financial statements were required  to be delivered pursuant to Section 6.01(a) or 6.01(b).  In connection with the foregoing, (a) with respect  to  any  Disposition  or  Recovery  Event,  (i)  income  statement  and  cash  flow  statement  items  (whether  positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any  period  occurring  prior  to  the  date  of  such  transaction  and  (ii)  Indebtedness  which  is  retired  shall  be  excluded and deemed to have been retired as of the first day of the applicable period and (b) with respect  to  any  Acquisition,  (i)  income  statement  and  cash  flow  statement  items  attributable  to  the  Person  or  property acquired shall be included to the extent relating to any period applicable in such calculations to  the extent (A) such items are not otherwise included in such income statement and cash flow statement  items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined  terms  set  forth  in  Section  1.01  and  (B)  such  items  are  supported  by  financial  statements  or  other  information  reasonably  satisfactory  to  the  Administrative  Agent  and  (ii)  any  Indebtedness  incurred  or  assumed by any Loan Party or any Subsidiary (including the Person or property acquired) in connection  with  such  transaction  and  any  Indebtedness  of  the  Person  or  property  acquired  which  is  not  retired  in  connection  with  such  transaction  (A)  shall  be deemed  to  have  been  incurred as  of  the  first day  of the  applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of  interest for the applicable period for purposes of this definition determined by utilizing the rate which is  or would be in effect with respect to such Indebtedness as at the relevant date of determination.         “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the Borrower  containing  reasonably  detailed  calculations  of  the  financial  covenants  set  forth  in  Section  7.11  recomputed as of the end of the period of the four (4) fiscal quarters most recently ended for which the  Borrower has delivered financial statements pursuant to Section 6.01(a) or (b) after giving effect to the  applicable transaction on a Pro Forma Basis.         “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor,  as any such exemption may be amended from time to time.        “Public Lender” has the meaning specified in Section 6.02.         “Qualified  Acquisition”  means a  Permitted  Acquisition  for  which  the  aggregate  cash  and  non- cash  consideration  (including  assumed  Indebtedness,  the  good  faith  estimate  by  the  Borrower  of  the  maximum  amount  of  any  deferred  purchase  price  obligations  (including  any  earn  out  payments)  and  Equity  Interests)  exceeds  $50,000,000;  provided,  that,  for  any  Acquisition  to  qualify  as  a  “Qualified  Acquisition”,  the  Administrative  Agent  shall  have  received,  prior  to  the  consummation  of  such  Acquisition, a Qualified Acquisition Election Certificate with respect to such Acquisition.                                         24  CHAR1\1593539v8  





 






      “Qualified Acquisition Election Certificate” means a certificate of a Responsible Officer of the  Borrower, in form and substance reasonably satisfactory to the Administrative Agent, (a) certifying that  the  applicable  Permitted  Acquisition  meets  the  criteria  set  forth  in  the  definition  of  “Qualified  Acquisition”,  and  (b)  notifying  the  Administrative  Agent  that  the  Borrower  has  elected  to  treat  such  Acquisition as a “Qualified Acquisition”.         “Qualified  Acquisition  Pro  Forma  Determination”  means,  to  the  extent  required  in  connection  with determining the permissibility of any Permitted Acquisition that constitute a Qualified Acquisition,  the determination required by clause (d) in the definition of “Permitted Acquisition.”         “Qualified  ECP  Guarantor”  means,  at  any  time,  each  Loan  Party  with  total  assets  exceeding  $10,000,000  or  that  qualifies  at  such  time  as  an  “eligible  contract  participant”  under  the  Commodity  Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time  under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.         “Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of  any payment to be made by or on account of any obligation of any Loan Party hereunder.         “Recovery Event” means any loss of, damage to or destruction of, or any condemnation or other  taking for public use of, any property of any Loan Party or any Subsidiary.         “Refinancing Indebtedness” means refinancings, renewals, or extensions or Indebtedness so long  as:           (a)   the  terms  and  conditions  of  such  refinancings,  renewals,  or  extensions  do  not   materially impair the prospects of repayment of the Obligations by Borrower or materially impair   Borrower’s creditworthiness;          (b)   such refinancings, renewals, or extensions do not result in an increase in the principal   amount of the Indebtedness so refinanced, renewed, or extended;          (c)   such refinancings, renewals, or extensions do not result in an increase in the interest   rate in excess of 2% with respect to the Indebtedness so refinanced, renewed, or extended;          (d)   excluding purchase money Indebtedness, such refinancings, renewals, or extensions   do  not  result  in  a  shortening  of  the  average  weighted  maturity  (measured  as  of  the  refinancing,   renewal,  or  extension)  of  the  Indebtedness  so  refinanced,  renewed,  or  extended,  nor  are  they  on   terms  or  conditions  that,  taken  as  a  whole,  are  or  could  reasonably  be  expected  to  be  materially   adverse to the interests of the Lenders;          (e)   if the Indebtedness that is refinanced, renewed, or extended was subordinated in right   of  payment  to  the  Obligations,  then  the  terms  and  conditions  of  the  refinancing,  renewal,  or   extension must include subordination terms and conditions that are at least as favorable, taken as a   whole,  to  the  Lenders  as  those  that  were  applicable  to  the  refinanced,  renewed,  or  extended   Indebtedness;          (f)   the  Indebtedness  that  is  refinanced,  renewed,  or  extended  is  not  recourse  to  any   Person that is liable on account of the Obligations other than those Persons which were obligated   with respect to the Indebtedness that was refinanced, renewed, or extended; and                                          25  CHAR1\1593539v8  





 






       (g)   if the Indebtedness that is refinanced, renewed or extended is secured, such Lien does   not extend to any property other than the property that secured the Indebtedness that was refinanced,   renewed or extended.          “Register” has the meaning specified in Section 11.06(c).         “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of  such Person and of such Person’s Affiliates.         “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty-day notice period has been waived.         “Request  for  Credit  Extension”  means  (a)  with  respect  to  a  Borrowing,  conversion  or  continuation  of  Loans,  a  Loan  Notice,  (b)  with  respect  to  an  L/C  Credit  Extension,  a  Letter  of  Credit  Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.         “Required  Lenders”  means,  at  any  time,  Lenders  having  Total  Credit  Exposures  representing  more  than  50%  of  the  Total  Credit  Exposures  of  all  Lenders.   The  Total  Credit  Exposure  of  any  Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that the  amount  of  any  participation  in  any  Swingline  Loan  and  Unreimbursed  Amounts  that  such  Defaulting  Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed  to be held by the Lender that is the Swingline Lender or L/C Issuer, as the case may be, in making such  determination.         “Resignation Effective Date” has the meaning specified in Section 9.06.         “Responsible Officer” means the chief executive officer, president, chief financial officer, general  counsel, treasurer, assistant treasurer or controller of a Loan Party, and, solely for purposes of the delivery  of  incumbency  certificates,  the  secretary  or  any  assistant  secretary  of  a  Loan  Party  and,  solely  for  purposes  of  notices  given pursuant to  Article  II,  any  other  officer  or employee  of  the  applicable  Loan  Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other  officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the  applicable Loan Party and the Administrative Agent.  Any document delivered hereunder that is signed by  a  Responsible  Officer  of  a  Loan  Party  shall  be  conclusively  presumed  to  have  been  authorized  by  all  necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible  Officer  shall  be  conclusively  presumed  to  have  acted  on  behalf  of  such  Loan  Party.   To  the  extent  requested by the Administrative Agent in writing, each Responsible Officer will provide an incumbency  certificate and appropriate authorization documentation, in form and substance reasonably satisfactory to  the Administrative Agent.         “Restricted  Payment”  means  any  dividend  or  other  distribution  (whether  in  cash,  securities  or  other  property)  with  respect  to  any  Equity  Interests  of  any  Person,  or  any  payment  (whether  in  cash,  securities or other property), including any sinking fund or similar deposit, on account of the purchase,  redemption, buy-back, retirement, defeasance, acquisition, cancellation or termination of any such Equity  Interests or on account of any return of capital to such Person’s stockholders, partners or members (or the  equivalent Person thereof), or any option, warrant or other right to acquire any such dividend or other  distribution or payment.         “Revaluation Date” means, with respect to any Letter of Credit, each of the following:  (a) each  date  of  issuance,  amendment  and/or  extension  of  a  Letter  of  Credit  denominated  in  an  Alternative                                         26  CHAR1\1593539v8  





 






Currency, (b) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an  Alternative  Currency,  (c)  in  the  case  of  all  Existing  Letters  of  Credit  denominated  in  Alternative  Currencies, the Closing Date, and (d) such additional dates as the Administrative Agent or the L/C Issuer  shall determine or the Required Lenders shall require.         “Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans  to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase  participations in Swingline Loans, in an aggregate principal amount at any one time outstanding not to  exceed  the  amount  set forth  opposite  such  Lender’s name  on  Schedule  2.01  or  in the Assignment  and  Assumption or other documentation pursuant to which such Lender becomes a party hereto, as applicable  as  such  amount  may  be  adjusted  from  time  to  time  in  accordance  with  this  Agreement.   Revolving  Commitments shall include any Incremental Revolving Commitment.         “Revolving  Credit  Exposure”  means,  as  to  any  Lender  at  any  time,  the  aggregate  principal  amount  at  such  time  of  its  outstanding  Revolving  Loans  and  such  Lender’s  participation  in  L/C  Obligations and Swingline Loans at such time.         “Revolving Loan” has the meaning specified in Section 2.01(a).         “S&P”  means  Standard  &  Poor’s  Financial  Services  LLC,  a  subsidiary  of  The  McGraw  Hill  Companies, Inc. and any successor thereto.         “Sale and Leaseback Transaction” means, with respect to any Person, any arrangement, directly  or  indirectly,  whereby  such  Person  shall  sell  or  transfer  any  property  used  or  useful  in  its  business,  whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that  it intends to use for substantially the same purpose or purposes as the property being sold or transferred.         “Sanction(s)”  means  any  sanction  administered  or  enforced  by  the  United  States  Government,  including  OFAC,  the  United  Nations  Security  Council,  the  European  Union,  Her  Majesty’s  Treasury  (“HMT”) or other relevant sanctions authority.         “SEC”  means  the  Securities  and  Exchange  Commission,  or  any  Governmental  Authority  succeeding to any of its principal functions.         “Secured  Cash  Management  Agreement”  means  any  Cash  Management  Agreement  that  is  entered into  by  and  between  any  Loan  Party  or  any  Subsidiary and  any  Cash Management  Bank  with  respect to such Cash Management Agreement.  For the avoidance of doubt, a holder of Obligations in  respect of Secured Cash Management Agreements shall be subject to the last paragraph of Section 8.03  and Section 9.11.         “Secured Hedge Agreement” means any Swap Contract that is entered into by and between any  Loan  Party  or  any  Subsidiary and  any  Hedge  Bank  with  respect  to  such  Swap  Contract.   For  the  avoidance of doubt, a holder of Obligations in respect of Secured Hedge Agreements shall be subject to  the last paragraph of Section 8.03 and Section 9.11.         “Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender  substantially in the form of Exhibit 1.01.         “Securitization  Transaction”  means,  with  respect  to  any  Person,  any  financing  transaction  or  series of financing transactions (including factoring arrangements) pursuant to which such Person or any  Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts,                                         27  CHAR1\1593539v8  





 






payments,  receivables,  rights  to  future  lease  payments  or  residuals  or  similar  rights  to  payment  to  a  special purpose subsidiary or affiliate of such Person.         “Security Agreement” means the security and pledge agreement, dated as of the Closing Date,  executed in favor of the Administrative Agent for the benefit of the holders of the Obligations by each of  the Loan Parties.         “Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such  date  (a)  such  Person  is  able  to  pay  its  debts  and  other  liabilities,  contingent  obligations  and  other  commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and  does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and  liabilities as they mature in the ordinary course of business, (c) such Person is not engaged in a business  or  a  transaction,  and  is  not  about  to  engage  in  a  business  or  a  transaction,  for  which  such  Person’s  property would constitute unreasonably small capital, (d) the fair value of the property of such Person is  greater  than  the  total  amount  of  liabilities,  including  contingent  liabilities,  of  such  Person  and  (e)  the  present fair salable value of the assets of such Person is not less than the amount that will be required to  pay the probable liability of such Person on its debts as they become absolute and matured.  The amount  of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and  circumstances existing at such time, represents the amount that can reasonably be expected to become an  actual or matured liability.         “Specified Loan Party” has the meaning specified in Section 10.08.         “Spot Rate” for a currency means the rate determined by the Administrative Agent or the L/C  Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the  purchase by such Person of such currency with another currency 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;  provided that  the Administrative  Agent or  the  L/C  Issuer  may  obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C  Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying  rate for any such currency; and provided further that the L/C Issuer may use such spot rate quoted on the  date  as  of  which  the  foreign  exchange  computation  is  made  in  the  case  of  any  Letter  of  Credit  denominated in an Alternative Currency.         “Subject Permitted Acquisition” has the meaning specified in Section 7.05(b).         “Subsidiary”  of  a  Person  means  a  corporation,  partnership,  joint  venture,  limited  liability  company  or  other  business  entity  of  which  a  majority  of  the  shares  of  Voting  Stock  is  at  the  time  beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through  one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a  “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.         “Sterling” and “£” mean the lawful currency of the United Kingdom.         “Swap  Contract”  means  (a)  any  and  all  rate  swap  transactions,  basis  swaps,  credit  derivative  transactions,  forward  rate  transactions,  commodity  swaps,  commodity  options,  forward  commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward  bond  or forward bond  price  or forward  bond  index  transactions, interest rate  options, forward  foreign  exchange  transactions,  cap  transactions,  floor  transactions,  collar  transactions,  currency  swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the                                         28  CHAR1\1593539v8  





 






foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement  (any  such  master  agreement,  together  with  any  related  schedules,  a  “Master  Agreement”),  including any such obligations or liabilities under any Master Agreement.         “Swap Obligation” means with respect to any Guarantor any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of  the Commodity Exchange Act.         “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking  into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a)  for  any  date  on  or  after  the  date  such  Swap  Contracts  have  been  closed  out  and  termination  value(s)  determined  in  accordance  therewith,  such  termination  value(s)  and  (b)  for  any  date  prior  to  the  date  referenced  in  clause  (a),  the  amount(s)  determined  as  the  mark-to-market  value(s)  for  such  Swap  Contracts,  as  determined  based  upon  one  or  more  mid-market  or  other  readily  available  quotations  provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate  of a Lender).         “Swingline Commitment” means, as to the Swingline Lender, its obligation to make Swingline  Loans  pursuant  to  Section  2.04  in  an  aggregate  principal  amount  at  any  one  time  outstanding  not  to  exceed the amount set forth opposite the Swingline Lender’s name on Schedule 2.04, as such amount may  be adjusted from time to time in accordance with this Agreement.         “Swingline Lender” means Bank of America in its capacity as provider of Swingline Loans, or  any successor Swingline lender hereunder.         “Swingline Loan” has the meaning specified in Section 2.04(a).         “Swingline Loan Notice” means a notice of a Borrowing of Swingline Loans pursuant to Section  2.04(b), which shall be substantially in the form of Exhibit 2.04 or such other form as approved by the  Administrative Agent (including any form on an electronic platform or electronic transmission system as  shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible  Officer of the Borrower.         “Swingline  Sublimit”  means  an  amount  equal  to  the  lesser  of  (a)  $30,000,000  and  (b)  the  Aggregate  Revolving  Commitments.   The  Swingline  Sublimit  is  part  of,  and  not  in  addition  to,  the  Aggregate Revolving Commitments.         “Synthetic  Lease  Obligation” means  the  monetary  obligation  of  a  Person  under (a) a  so-called  synthetic,  off-balance  sheet  or  tax  retention  lease,  or  (b)  an  agreement  for  the  use  or  possession  of  property creating obligations that do not appear on the balance sheet of such Person but which, upon the  insolvency  or  bankruptcy  of  such  Person,  would  be  characterized  as  the  indebtedness  of  such  Person  (without regard to accounting treatment).         “Taxes”  means  all  present  or  future  taxes,  levies,  imposts,  duties,  deductions,  withholdings  (including  backup  withholding),  assessments,  fees  or  other  charges  imposed  by  any  Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.         “Threshold Amount” means $25,000,000.                                         29  CHAR1\1593539v8  





 






      “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments of such  Lender at such time, the outstanding Loans of such Lender at such time and such Lender’s participation in  L/C Obligations and Swingline Loans at such time.         “Total  Revolving  Outstandings”  means  the  aggregate  Outstanding  Amount  of  all  Revolving  Loans, all Swingline Loans and all L/C Obligations.         “TrueBlue Investment Policy” means the Investment Policy of TrueBlue, Inc., in effect as of the  Closing  Date.   Such  Investment  Policy  of  TrueBlue,  Inc.  may,  with  the  prior  consent  of  the  Administrative Agent, be amended, restated, supplemented or otherwise modified from time to time.          “Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate  Loan.         “UCP”  means,  with  respect  to  any  Letter  of  Credit,  the  Uniform  Customs  and  Practice  for  Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later  version thereof as may be in effect at the time of issuance).         “United States” and “U.S.” mean the United States of America.         “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).         “U.S.  Person”  means  any  Person  that  is  a  “United  States  Person”  as  defined  in  Section  7701(a)(30) of the Internal Revenue Code.         “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(3).         “Voting  Stock”  means,  with  respect  to  any  Person,  Equity Interests issued  by  such  Person  the  holders  of  which  are  ordinarily,  in  the  absence  of  contingencies,  entitled  to  vote  for  the  election  of  directors (or persons performing similar functions) of such Person, even though the right so to vote has  been suspended by the happening of such a contingency.         “WAHI” means Worker’s Assurance of Hawaii, Inc., a Hawaii corporation.         “Write-Down and Conversion Powers” means, 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.         1.02  Other Interpretive Provisions.         With  reference  to  this  Agreement  and  each  other  Loan  Document,  unless  otherwise  specified  herein or in such other Loan Document:               (a)   The  definitions  of  terms  herein  shall  apply  equally  to  the  singular  and  plural        forms of the terms defined.  Whenever the context may require, any pronoun shall include the        corresponding  masculine,  feminine  and  neuter  forms.   The  words  “include,”  “includes”  and        “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”        shall be construed to have the same meaning and effect as the word “shall.”  Unless the context        requires  otherwise,  (i)  any  definition  of  or  reference  to  any  agreement,  instrument  or  other        document  (including  any  Loan  Document  or  Organization  Document)  shall  be  construed  as                                         30  CHAR1\1593539v8  





 






      referring  to  such  agreement,  instrument  or  other  document  as  from  time  to  time  amended,        amended and restated, modified, extended, restated, replaced or supplemented from time to time        (subject to any restrictions on such amendments, supplements or modifications set forth herein or        in  any  other  Loan  Document),  (ii)  any  reference  herein  to  any  Person  shall  be  construed  to        include  such  Person’s  successors  and  assigns,  (iii)  the  words  “hereto,”  “herein,”  “hereof”  and        “hereunder,” and words of similar import when used in any Loan Document, shall be construed to        refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all        references  in  a  Loan  Document  to  Articles,  Sections,  Preliminary  Statements,  Exhibits  and        Schedules shall be construed to refer to Articles and Sections of, Preliminary Statements of and        Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference        to  any  Law  shall  include  all  statutory  and  regulatory  rules,  regulations,  orders  and  provisions        consolidating,  amending,  replacing  or  interpreting  such  Law  and  any  reference  to  any  Law  or        regulation  shall,  unless  otherwise  specified,  refer  to  such  Law  or  regulation  as  amended,        modified,  extended,  restated,  replaced  or  supplemented  from  time  to  time,  and  (vi)  the  words        “asset” and “property” shall be construed to have the same meaning and effect and to refer to any        and all assets and properties, tangible and intangible, real and personal, including cash, securities,        accounts and contract rights.               (b)   In the computation of periods of time from a specified date to a later specified        date, the word “from” means “from and including;” the words “to” and “until” each mean “to but        excluding;” and the word “through” means “to and including.”               (c)   Section  headings  herein  and  in  the  other  Loan  Documents  are  included  for        convenience  of  reference  only  and  shall  not  affect  the  interpretation  of  this  Agreement  or  any        other Loan Document.         1.03  Accounting Terms.               (a)   Generally.   All  accounting  terms  not  specifically  or  completely  defined  herein        shall be construed in conformity with, and all financial data (including financial ratios and other        financial calculations) required to be submitted pursuant to this Agreement shall be prepared in        conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a        manner  consistent  with  that  used  in  preparing  the  Audited  Financial  Statements,  except  as        otherwise  specifically  prescribed  herein.   Notwithstanding  the  foregoing,  for  purposes  of        determining compliance with any covenant (including the computation of any financial covenant)        contained herein, Indebtedness of the Loan Parties and their Subsidiaries shall be deemed to be        carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825        on financial liabilities shall be disregarded.               (b)   Changes in GAAP.  If at any time any change in GAAP (including the adoption        of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan        Document, and either the Borrower or the Required Lenders shall so request, the Administrative        Agent,  the  Lenders  and  the  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.  Without limiting the foregoing, leases shall continue to be        classified  and  accounted  for  on  a  basis  consistent  with  that  reflected  in  the  Audited  Financial                                        31  CHAR1\1593539v8  





 






      Statements  for  all  purposes  of  this  Agreement,  notwithstanding  any  change  in  GAAP  relating        thereto,  unless  the  parties  hereto  shall  enter  into  a  mutually  acceptable  amendment  addressing        such changes, as provided for above.               (c)   Consolidation of Variable Interest Entities.  All references herein to consolidated        financial statements of the Borrower and its Subsidiaries or to the determination of any amount        for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in        each  case,  be  deemed  to  include  each  variable  interest  entity  that  the  Borrower  is  required  to        consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as        defined herein.               (d)   Calculations.   Notwithstanding  the  above,  the  parties  hereto  acknowledge  and        agree that all calculations of the financial covenants in Section 7.11 (including for purposes of        determining  the  Applicable  Rate)  shall  be  made  on  a  Pro  Forma  Basis  with  respect  to  (i)  any        Disposition  of  all  of  the  Equity  Interests  of,  or  all  or  substantially  all  of  the  assets  of,  a        Subsidiary, (ii) any Disposition of a line of business or division of any Loan Party or Subsidiary,        or (iii) any Acquisition, in each case, occurring during the applicable period.         1.04  Rounding.         Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall  be calculated by dividing the appropriate component by the other component, carrying the result to one  place more than the number of places by which such ratio is expressed herein and rounding the result up  or down to the nearest number (with a rounding-up if there is no nearest number).         1.05  Times of Day; Rates.         Unless  otherwise specified,  all  references  herein  to  times  of  day  shall  be  references to  Pacific  time  (daylight  or  standard,  as  applicable).   The  Administrative  Agent  does  not  warrant,  nor  accept  responsibility, nor shall the Administrative Agent have any liability with respect to the administration,  submission or any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to  any comparable or successor rate thereto.         1.06  Letter of Credit Amounts.         Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to  be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided,  however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document  related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of  such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such  Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in  effect at such time.         1.07  Exchange Rates; Currency Equivalents.  The Administrative Agent or the L/C Issuer,        as  applicable,  shall  determine  the  Spot  Rates  as  of  each  Revaluation  Date  to  be  used  for        calculating  Dollar  Equivalent  amounts  of  Letters  of  Credit  and  Outstanding  Amounts        denominated  in  Alternative  Currencies.   Such  Spot  Rates  shall  become  effective  as  of  such        Revaluation Date and shall be the Spot Rates employed in converting any amounts between the        applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial        statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or        except as otherwise provided herein, the applicable amount of any currency (other than Dollars)                                         32  CHAR1\1593539v8  





 






      for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by        the Administrative Agent or the L/C Issuer, as applicable.               (b)   Wherever  in  this  Agreement  in  connection  with  the  issuance,  amendment  or        extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is        expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such        amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to        the  nearest  unit  of  such  Alternative  Currency,  with  0.5  of  a  unit  being  rounded  upward),  as        determined by the Administrative Agent or the L/C Issuer, as the case may be.         1.08  Additional Alternative Currencies. The Borrower may from time to time request that  the L/C Issuer issue a Letter of Credit in a currency other than those specifically listed in the definition of  “Alternative Currency”; provided that such requested currency is an Eligible Currency.  In the case of any  such request, such request shall be subject to the approval of the Administrative Agent and the L/C Issuer.   Any specified currency of an Existing Letter of Credit that is neither Dollars nor one of the Alternative  Currencies specifically listed in the definition of “Alternative Currency” shall be deemed an Alternative  Currency with respect to such Existing Letter of Credit only.        1.09  Change of Currency. 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 Closing Date shall be redenominated into Euro at the time of such        adoption.  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.               (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.                (c)   Each  provision  of  this  Agreement  also  shall  be  subject  to  such  reasonable        changes  of  construction  as  the  Administrative  Agent  may  from  time  to  time  specify  to  be        appropriate  to  reflect  a  change  in  currency  of  any  other  country  and  any  relevant  market        conventions or practices relating to the change in currency.                                    ARTICLE II.                    THE COMMITMENTS AND CREDIT EXTENSIONS         2.01  Revolving Loans.         Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans  (each such loan, a “Revolving Loan”) to the Borrower in Dollars from time to time on any Business Day  during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount  of such Lender’s Revolving Commitment; provided, however, that after giving effect to any Borrowing of  Revolving  Loans,  (i)  the  Total  Revolving  Outstandings  shall  not  exceed  the  Aggregate  Revolving  Commitments,  and  (ii)  the  Revolving  Credit  Exposure  of  any  Lender  shall  not  exceed  such  Lender’s  Revolving Commitment.  Within the limits of each Lender’s Revolving Commitment, and subject to the  other  terms  and  conditions  hereof,  the  Borrower  may  borrow  under  this  Section  2.01,  prepay  under                                         33  CHAR1\1593539v8  





 






Section  2.05,  and  reborrow  under  this  Section  2.01.   Revolving  Loans  may  be  Base  Rate  Loans  or  Eurodollar  Rate  Loans,  or  a  combination  thereof,  as  further  provided  herein;  provided,  however,  all  Borrowings made on the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a  funding indemnity letter in form and substance reasonably satisfactory to the Administrative Agent not  less than three (3) Business Days prior to the date of such Borrowing.         2.02  Borrowings, Conversions and Continuations of Loans.               (a)   Each Borrowing, each conversion of Loans from one Type to the other, and each        continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to        the Administrative Agent, which may be given by (A) telephone, or (B) a Loan Notice; provided        that any telephonic notice must be confirmed promptly by delivery to the Administrative Agent of        a Loan Notice.  Each such Loan Notice must be received by the Administrative Agent not later        than  11:00  a.m.  (i)  three  (3)  Business  Days  prior  to  the  requested  date  of  any  Borrowing  of,        conversion to or continuation of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate        Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans;       provided,  however,  that  if  the  Borrower  wishes  to  request  Eurodollar  Rate  Loans  having  an        Interest Period other than one (1), two (2), three (3) or six (6) months in duration as provided in        the definition of “Interest Period”, the applicable notice must be received by the Administrative        Agent  not  later  than  11:00 a.m.  four  (4)  Business  Days  prior  to  the  requested  date  of  such        Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt        notice  to  the  Lenders  of  such  request  and  determine  whether  the  requested  Interest  Period  is        acceptable to all of them.  Not later than 11:00 a.m., three (3) Business Days before the requested        date  of  such  Borrowing,  conversion  or  continuation,  the  Administrative  Agent  shall  notify  the        Borrower (which notice may be by telephone) whether or not the requested Interest Period has        been  consented  to  by  all  the  Lenders.   Each  Borrowing  of,  conversion  to  or  continuation  of        Eurodollar  Rate  Loans  shall  be  in  a  principal  amount  of  $2,500,000  or  a  whole  multiple  of        $500,000 in excess thereof.  Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing        of  or  conversion  to  Base  Rate  Loans  shall  be  in  a  principal  amount  of  $500,000  or  a  whole        multiple of $100,000 in excess thereof.  Each Loan Notice shall specify (i) whether the Borrower        is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of        Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as        the  case  may  be  (which  shall  be  a  Business  Day),  (iii)  the  principal  amount  of  Loans  to  be        borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing        Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect        thereto.  If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails        to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be        made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans        shall  be  effective  as  of  the  last  day  of  the  Interest  Period  then  in  effect  with  respect  to  the        applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or        continuation of Eurodollar Rate Loans in any Loan Notice, but fails to specify an Interest Period,        it will be deemed to have specified an Interest Period of one month.               (b)   Following  receipt  of  a  Loan  Notice,  the  Administrative  Agent  shall  promptly        notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no        timely  notice  of  a  conversion  or  continuation  is provided  by  the  Borrower, the  Administrative        Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans        described in the preceding subsection.  In the case of a Borrowing, each Lender shall make the        amount of its Loan available to the Administrative Agent in immediately available funds at the        Administrative  Agent’s  Office  not  later  than  12:00  noon  on  the  Business  Day specified  in  the        applicable Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02                                        34  CHAR1\1593539v8  





 






      (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent        shall  make  all  funds  so  received  available  to  the  Borrower  in  like  funds  as  received  by  the        Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of        America  with  the  amount  of  such  funds  or  (ii)  wire  transfer  of  such  funds,  in  each  case  in        accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent        by  the  Borrower;  provided,  however,  that  if,  on  the  date  the  Loan  Notice  with  respect  to  a        Borrowing of Revolving Loans is given by the Borrower, there are L/C Borrowings outstanding,        then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C        Borrowings and second, shall be made available to the Borrower as provided above.               (c)   Except as otherwise provided herein, a Eurodollar Rate Loan may be continued        or converted only on the last day of the Interest Period for such Eurodollar Rate Loan.  During the        existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar        Rate Loans without the consent of the Required Lenders, and the Required Lenders may demand        that any or all of the outstanding Eurodollar Rate Loans be converted immediately to Base Rate        Loans.               (d)   Each determination of an interest rate by the Administrative Agent pursuant to        any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders        in the absence of manifest error.                (e)   After giving effect to all Borrowings, all conversions of Loans from one Type to        the  other,  and  all  continuations  of  Loans  as  the  same  Type,  there  shall  not  be  more  than  ten        Interest Periods in effect.               (f)   Notwithstanding  anything  to  the  contrary  in  this  Agreement,  any  Lender  may        exchange, continue or rollover all or a portion of its Loans in connection with any refinancing,        extension,  loan  modification  or  similar  transaction  permitted  by  the  terms  of  this  Agreement,        pursuant  to  a  cashless  settlement  mechanism  approved  by  the  Borrower,  the  Administrative        Agent and such Lender.               (g)   This Section 2.02 shall not apply to Swingline Loans.         2.03  Letters of Credit.               (a)   The Letter of Credit Commitment.                     (i)   Subject to the terms and conditions set forth herein, (A) the L/C Issuer              agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1)              from time to time on any Business Day during the period from the Closing Date until the              Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in              one  or  more  Alternative  Currencies  for  the  account  of  the  Borrower  or  any  of  its              Subsidiaries,  and  to  amend  or  extend  Letters  of  Credit  previously  issued  by  it,  in              accordance  with  subsection  (b)  below,  and  (2)  to  honor  drawings  under the  Letters  of              Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for              the account of the Borrower or its Subsidiaries and any drawings thereunder; provided              that after giving effect to any L/C Credit Extension with respect to any Letter of Credit,              (x)  the  Total  Revolving  Outstandings  shall  not  exceed  the  Aggregate  Revolving              Commitments, (y) the Revolving Credit Exposure of any Lender shall not exceed such              Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations              shall not exceed the Letter of Credit Sublimit; provided, further, that, after giving effect                                         35  CHAR1\1593539v8  





 






            to all L/C Credit Extensions, the aggregate Outstanding Amount of all Letters of Credit              issued  by  the  L/C  Issuer  shall  not  exceed  the  L/C  Issuer’s  L/C  Commitment.   Each              request  by  the  Borrower  for  the  issuance  or  amendment  of  a  Letter  of  Credit  shall  be              deemed to be a representation by the Borrower that the L/C Credit Extension so requested              complies with the conditions set forth in the proviso to the preceding sentence.  Within              the  foregoing  limits,  and  subject  to  the  terms  and  conditions  hereof,  the  Borrower’s              ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower              may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that              have  expired  or  that  have  been  drawn  upon  and  reimbursed.   All  Existing  Letters  of              Credit shall be deemed to have been issued pursuant hereto and deemed L/C Obligations,              and from and after the Closing Date shall be subject to and governed by the terms and              conditions hereof.                     (ii)  The L/C Issuer shall not issue any Letter of Credit if:                           (A)   subject  to  Section  2.03(b)(iii),  the  expiry  date  of  the  requested                     Letter  of  Credit  would occur  more  than  twelve  (12)  months after the  date  of                     issuance or last extension, unless the Lenders (other than Defaulting Lenders)                     holding  a  majority  of  the  Revolving  Credit  Exposure  have  approved  such                     expiry date; or                           (B)   the  expiry  date  of such requested  Letter of  Credit  would  occur                     after  the  Letter  of  Credit  Expiration  Date,  unless  all  the  Lenders  that  have                     Revolving Commitments have approved such expiry date.                     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of              Credit if:                           (A)   any order, judgment or decree of any Governmental Authority or                     arbitrator  shall  by  its  terms  purport  to  enjoin  or  restrain  the  L/C  Issuer  from                     issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any                     request  or  directive  (whether  or  not  having  the  force  of  Law)  from  any                     Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or                     request  that  the  L/C  Issuer  refrain  from,  the  issuance  of  letters  of  credit                     generally  or  such  Letter  of  Credit  in particular  or shall impose  upon the  L/C                     Issuer with  respect  to  such  Letter  of  Credit  any  restriction,  reserve  or capital                     requirement (for which the L/C Issuer is not otherwise compensated hereunder)                     not  in  effect  on  the  Closing  Date,  or  shall  impose  upon  the  L/C  Issuer  any                     unreimbursed  loss,  cost  or  expense  which  was  not  applicable  on  the  Closing                     Date and which the L/C Issuer in good faith deems material to it;                           (B)   the issuance of such Letter of Credit would violate one or more                     policies of the L/C Issuer applicable to letters of credit generally;                           (C)   the L/C Issuer does not, as of the issuance date of the requested                     Letter of Credit, issue Letters of Credit in the requested currency;                           (D)   except as otherwise agreed by the Administrative Agent and the                     L/C Issuer, such Letter of Credit is to be denominated in a currency other than                     Dollars or an Alternative Currency;                                         36  CHAR1\1593539v8  





 






                        (E)   any  Lender  is  at that  time a  Defaulting  Lender,  unless  the  L/C                     Issuer has entered into arrangements, including the delivery of Cash Collateral,                     satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such                     Defaulting  Lender  to  eliminate  the  L/C  Issuer’s  actual  or  potential  Fronting                     Exposure (after giving effect to Section 2.15(b)) with respect to the Defaulting                     Lender  arising from  either  the  Letter of Credit then proposed to  be issued  or                     that Letter of Credit and all other L/C Obligations as to which the L/C Issuer                     has actual or potential Fronting Exposure, as it may elect in its sole discretion;                     or                           (F)   such  Letter  of  Credit  contains  any  provisions  for  automatic                     reinstatement of the stated amount after any drawing thereunder.                     (iv)  The  L/C  Issuer  shall  not  amend  any  Letter  of  Credit  if  the  L/C  Issuer              would  not  be permitted  at  such  time  to  issue the  Letter  of  Credit in  its  amended  form              under the terms hereof.                     (v)   The  L/C  Issuer  shall  be  under  no  obligation  to  amend  any  Letter  of              Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of              Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of              Credit does not accept the proposed amendment to the Letter of Credit.                     (vi)  The  L/C  Issuer  shall  act  on  behalf  of  the  Lenders  with  respect  to  any              Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer              shall have all of the benefits and immunities (A) provided to the Administrative Agent in              Article  IX  with  respect  to  any  acts  taken  or  omissions  suffered  by  the  L/C  Issuer  in              connection with Letters of Credit issued by it or proposed to be issued by it and Issuer              Documents pertaining to  such  Letters of  Credit  as  fully  as  if the term  “Administrative              Agent”  as  used  in  Article  IX  included  the  L/C  Issuer  with  respect  to  such  acts  or              omissions, and (B) as additionally provided herein with respect to the L/C Issuer.               (b)   Procedures  for  Issuance  and  Amendment  of  Letters  of  Credit;  Auto-Extension        Letters of Credit.                     (i)   Each  Letter  of Credit  shall be  issued  or  amended,  as  the  case  may be,              upon  the  request  of  the  Borrower  delivered  to  the  L/C  Issuer  (with  a  copy  to  the              Administrative  Agent)  in  the  form  of  a  Letter  of  Credit  Application,  appropriately              completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit              Application may be sent by fax transmission, by United States mail, by overnight courier,              by  electronic  transmission  using  the  system  provided  by  the  L/C  Issuer,  by  personal              delivery  or  by  any  other  means  acceptable  to  the  L/C  Issuer.   Such  Letter  of  Credit              Application must be received by the L/C Issuer and the Administrative Agent not later              than  11:00  a.m.  at  least  two  (2)  Business  Days  (or  such  later  date  and  time  as  the              Administrative Agent and the L/C Issuer may agree in a particular instance in their sole              discretion) prior to the proposed issuance date or date of amendment, as the case may be.               In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit              Application  shall  specify  in  form  and  detail  satisfactory  to  the  L/C  Issuer:  (A)  the              proposed issuance date of the requested Letter of Credit (which shall be a Business Day);              (B) the amount and currency thereof (and in the absence of a specification of currency,              shall be deemed a request for a Letter of Credit denominated in Dollars); (C) the expiry              date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be                                        37  CHAR1\1593539v8  





 






            presented by such beneficiary in case of any drawing thereunder; (F) the full text of any              certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the              purpose and nature of the requested Letter of Credit; and (H) such other matters as the              L/C Issuer may require.  In the case of a request for an amendment of any outstanding              Letter  of  Credit,  such  Letter  of  Credit  Application  shall  specify  in  form  and  detail              satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed              date  of  amendment  thereof  (which  shall  be  a  Business  Day);  (C)  the  nature  of  the              proposed  amendment;  and  (D)  such  other  matters  as  the  L/C  Issuer  may  require.               Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent              such  other  documents  and  information  pertaining  to  such  requested  Letter  of  Credit              issuance  or  amendment,  including  any  Issuer  Documents,  as  the  L/C  Issuer  or  the              Administrative Agent may require.                     (ii)  Promptly after receipt of any Letter of Credit Application, the L/C Issuer              will  confirm  with  the  Administrative  Agent  (by  telephone  or  in  writing)  that  the              Administrative Agent has received a copy of such Letter of Credit Application from the              Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy              thereof.   Unless  the  L/C  Issuer  has  received  written  notice  from  any  Lender,  the              Administrative Agent or any Loan Party, at least one Business Day prior to the requested              date  of  issuance  or  amendment  of  the  applicable  Letter  of  Credit,  that  one  or  more              applicable conditions contained in Article IV shall not then be satisfied, then, subject to              the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter              of Credit for the account of the Borrower or the applicable Subsidiary or enter into the              applicable  amendment,  as  the  case  may  be,  in  each  case  in  accordance  with  the  L/C              Issuer’s usual and customary business practices.  Immediately upon the issuance of each              Letter  of  Credit,  each  Lender  shall  be  deemed  to,  and  hereby  irrevocably  and              unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter              of Credit in an amount equal to the product of such Lender’s Applicable Percentage times              the amount of such Letter of Credit.                     (iii) If  the  Borrower  so  requests  in  any  applicable  Letter  of  Credit              Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit              that  has  automatic  extension  provisions  (each,  an  “Auto-Extension  Letter  of  Credit”);              provided  that  any  such  Auto-Extension  Letter  of  Credit  must  permit  the  L/C  Issuer  to              prevent any such extension at least once in each twelve-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  L/C  Issuer,  the  Borrower  shall  not  be  required  to  make  a              specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter              of Credit has been issued, the Lenders shall be deemed to have authorized (but may not              require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an              expiry date not later than the Letter of Credit Expiration Date; provided, however, that              the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined              that it would not be permitted, or would have no obligation, at such time to issue such              Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the              provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received              notice (which may be by telephone or in writing) on or before the day that is seven (7)              Business Days before the Non-Extension Notice Date (1) from the Administrative Agent              that  the  Required  Lenders  have  elected  not  to  permit  such  extension  or  (2)  from  the              Administrative  Agent,  any  Lender  or  the  Borrower  that  one  or  more  of  the  applicable                                        38  CHAR1\1593539v8  





 






            conditions specified in Section 4.02 is not then satisfied, and in each case directing the              L/C Issuer not to permit such extension.                     (iv)  Promptly after its delivery of any Letter of Credit or any amendment to a              Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the              L/C  Issuer  will  also  deliver  to  the  Borrower  and  the  Administrative  Agent  a  true  and              complete copy of such Letter of Credit or amendment.               (c)   Drawings and Reimbursements; Funding of Participations.                     (i)   Upon receipt from the beneficiary of any Letter of Credit of any notice of              drawing  under  such  Letter  of  Credit,  the  L/C  Issuer shall  notify  the  Borrower  and  the              Administrative  Agent  thereof.   In  the  case  of  a  Letter  of  Credit  denominated  in  an              Alternative  Currency,  the Borrower  shall  reimburse  the  L/C  Issuer  in  such  Alternative              Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that              it will require reimbursement in Dollars, or (B) in the absence of any such requirement              for reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly              following receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer              in Dollars.  In the case of any such reimbursement in Dollars of a drawing under a Letter              of  Credit  denominated  in  an  Alternative  Currency,  the  L/C  Issuer  shall  notify  the              Borrower of the Dollar Equivalent of the amount of the drawing promptly following the              determination thereof.  Not later than 11:00 a.m. on the date of any payment by the L/C              Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the              date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an              Alternative Currency (each such date, an “Honor Date”), the Borrower shall reimburse              the  L/C  Issuer  through the Administrative  Agent  in an  amount equal to  the  amount  of              such  drawing  and  in  the  applicable  currency.   In  the  event  that  (A)  a  drawing              denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the              second  sentence  in  this  Section  2.03(c)(i)  and  (B)  the  Dollar  amount  paid  by  the              Borrower, whether on or after the Honor Date, shall not be adequate on the date of that              payment to purchase in accordance with normal banking procedures a sum denominated              in the Alternative Currency equal to the drawing, the Borrower agrees, as a separate and              independent  obligation,  to  indemnify  the  L/C  Issuer  for  the  loss  resulting  from  its              inability  on  that  date  to  purchase  the  Alternative  Currency  in  the  full  amount  of  the              drawing.   If  the  Borrower  fails  to  timely  reimburse  the  L/C  Issuer  by  such  time,  the              Administrative Agent shall promptly notify each Lender of the Honor Date, the amount              of  the  unreimbursed  drawing  (expressed  in  Dollars  in  the  amount  of  the  Dollar              Equivalent  thereof  in  the  case  of  a  Letter  of  Credit  denominated  in  an  Alternative              Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable              Percentage  thereof.   In  such  event,  the  Borrower shall  be  deemed  to  have  requested  a              Borrowing of Revolving Loans that are Base Rate Loans to be disbursed on the Honor              Date in an amount equal to the Unreimbursed Amount, without regard to the minimum              and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but              subject  to  the  unutilized  portion  of  the  Aggregate  Revolving  Commitments  and  the              conditions  set  forth  in  Section  4.02  (other  than  the  delivery  of  a  Loan  Notice).   Any              notice  given  by  the  L/C  Issuer  or  the  Administrative  Agent  pursuant  to  this  Section              2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that              the lack of such an immediate confirmation shall not affect the conclusiveness or binding              effect of such notice.                                          39  CHAR1\1593539v8  





 






                  (ii)  Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make              funds available (and the Administrative Agent  may apply Cash Collateral provided for              this purpose) for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s              Office for Dollar-denominated payments in an amount equal to its Applicable Percentage              of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in              such notice by the Administrative Agent, whereupon, subject to the provisions of Section              2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a              Revolving  Loan  that  is  a  Base  Rate  Loan  to  the  Borrower  in  such  amount.   The              Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.                     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by              a  Borrowing  of  Revolving  Loans  that  are  Base  Rate  Loans  because  the  conditions  set              forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be              deemed  to  have  incurred  from  the  L/C  Issuer  an  L/C  Borrowing  in the  amount  of the              Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and              payable on demand (together with interest) and shall bear interest at the Default Rate.  In              such event, each  Lender’s payment  to  the  Administrative  Agent  for the  account  of the              L/C  Issuer  pursuant  to  Section  2.03(c)(ii)  shall  be  deemed  payment  in  respect  of  its              participation  in  such  L/C  Borrowing  and  shall  constitute  an  L/C  Advance  from  such              Lender in satisfaction of its participation obligation under this Section 2.03.                     (iv)  Until each Lender funds its Revolving Loan or L/C Advance pursuant to              this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter              of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall              be solely for the account of the L/C Issuer.                     (v)   Each Lender’s obligation to make Revolving Loans or L/C Advances to              reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by              this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any              circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right              which such Lender may have against the L/C Issuer, the Borrower or any other Person for              any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other              occurrence, event or condition, whether or not similar to any of the foregoing; provided,              however, that each Lender’s obligation to make Revolving Loans pursuant to this Section              2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the              Borrower  of  a  Loan  Notice).   No  such  making  of  an  L/C  Advance  shall  relieve  or              otherwise  impair  the  obligation  of  the  Borrower  to  reimburse  the  L/C  Issuer  for  the              amount of any payment made by the L/C Issuer under any Letter of Credit, together with              interest as provided herein.                     (vi)  If any Lender fails to make available to the Administrative Agent for the              account of the L/C Issuer any amount required to be paid by such Lender pursuant to the              foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),              then,  without  limiting  the  other  provisions  of  this  Agreement,  the  L/C  Issuer  shall  be              entitled  to  recover  from  such  Lender  (acting  through  the  Administrative  Agent),  on              demand, such amount with interest thereon for the period from the date such payment is              required to the date on which such payment is immediately available to the L/C Issuer at              a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by              the L/C Issuer in accordance with banking industry rules on interbank compensation, plus              any administrative, processing or similar fees customarily charged by the L/C Issuer in              connection with the foregoing.  If such Lender pays such amount (with interest and fees                                        40  CHAR1\1593539v8  





 






            as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included              in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as              the case may be.  A certificate of the L/C Issuer submitted to any Lender (through the              Administrative Agent) with respect to any amounts owing under this clause (vi) shall be              conclusive absent manifest error.               (d)   Repayment of Participations.                     (i)   At any time after the L/C Issuer has made a payment under any Letter of              Credit and has received from any Lender such Lender’s L/C Advance in respect of such              payment in accordance with Section 2.03(c), if the Administrative Agent receives for the              account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or              interest thereon (whether directly from the Borrower or otherwise, including proceeds of              Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent              will  distribute  to  such  Lender  its  Applicable  Percentage  thereof  in  Dollars  and  in  the              same funds as those received by the Administrative Agent.                     (ii)  If any payment received by the Administrative Agent for the account of              the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the              circumstances described in Section 11.05 (including pursuant to any settlement entered              into  by  the  L/C  Issuer  in  its  discretion),  each  Lender  shall  pay  to  the  Administrative              Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of              the Administrative Agent, plus interest thereon from the date of such demand to the date              such amount is returned by such Lender, at a rate per annum equal to the Federal Funds              Rate from time to time in effect.  The obligations of the Lenders under this clause shall              survive the payment in full of the Obligations and the termination of this Agreement.               (e)   Obligations  Absolute.   The  obligation  of  the  Borrower  to  reimburse  the  L/C        Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be        absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of        this Agreement under all circumstances, including the following:                     (i)   any  lack  of  validity  or  enforceability  of  such  Letter  of  Credit,  this              Agreement or any other Loan Document;                     (ii)  the  existence  of  any  claim,  counterclaim,  setoff,  defense  or  other  right              that any Loan Party or any Subsidiary may have at any time against any beneficiary or              any transferee of such Letter of Credit (or any Person for whom any such beneficiary or              any  such  transferee  may  be  acting),  the  L/C  Issuer  or  any  other  Person,  whether  in              connection with this Agreement, the transactions contemplated hereby or by such Letter              of Credit or any agreement or instrument relating thereto, or any unrelated transaction;                     (iii) any  draft,  demand,  certificate  or  other  document  presented  under  such              Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or              any statement therein being untrue or inaccurate in any respect; or any loss or delay in the              transmission or otherwise of any document required in order to make a drawing under              such Letter of Credit;                     (iv)  waiver  by  the  L/C  Issuer  of  any  requirement  that  exists  for  the  L/C              Issuer’s protection and not the protection of the Borrower or any waiver by the L/C Issuer              which does not in fact materially prejudice the Borrower;                                         41  CHAR1\1593539v8  





 






                  (v)   honor  of  a  demand  for  payment  presented  electronically  even  if  such              Letter of Credit requires that demand be in the form of a draft;                     (vi)  any  payment  made  by  the  L/C  Issuer  in  respect  of  an  otherwise              complying item presented after the date specified as the expiration date of, or the date by              which documents must be received under such Letter of Credit if presentation after such              date is authorized by the UCC, the ISP or the UCP, as applicable;                     (vii) any  payment  by  the  L/C  Issuer  under  such  Letter  of  Credit  against              presentation of a draft or certificate that does not strictly comply with the terms of such              Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to              any  Person  purporting  to be  a trustee in  bankruptcy,  debtor-in-possession,  assignee  for              the benefit of creditors, liquidator, receiver or other representative of or successor to any              beneficiary or any transferee of such Letter of Credit, including any arising in connection              with any proceeding under any Debtor Relief Law;                      (viii) any adverse change in the relevant exchange rates or in the availability of              the relevant  Alternative  Currency  to  the  Borrower  or  any  Subsidiary  or in the relevant              currency markets generally; or                     (ix)  any other circumstance or happening whatsoever, whether or not similar              to any of the foregoing, including any other circumstance that might otherwise constitute              a defense available to, or a discharge of, any Loan Party or any Subsidiary.   The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is  delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other  irregularity,  the  Borrower  will  promptly  notify  the  L/C  Issuer.   The  Borrower  shall  be  conclusively  deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is  given as aforesaid.  Nothing in this Section 2.03(e) shall be deemed a waiver of the provisos in the third  and fourth sentences of Section 2.03(f).               (f)   Role  of  L/C  Issuer.   Each  Lender  and  the  Borrower  agree  that,  in  paying  any        drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any        document (other than any sight or time draft, certificates and documents expressly required by        such  Letter  of  Credit)  or  to  ascertain  or  inquire  as  to  the  validity  or  accuracy  of  any  such        document or the authority of the Person executing or delivering any such document.  None of the        L/C  Issuer,  the  Administrative  Agent,  any  of  their  respective  Related  Parties  nor  any        correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any        action taken or omitted in connection herewith at the request or with the approval of the Lenders        or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross        negligence  or  willful  misconduct;  or  (iii)  the  due  execution,  effectiveness,  validity  or        enforceability of any document or instrument related to any Letter of Credit or Issuer Document.         The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee        with  respect  to  its  use  of  any  Letter  of  Credit;  provided,  however,  that  this  assumption  is  not        intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it        may have against the beneficiary or transferee at law or under any other agreement.  None of the        L/C  Issuer,  the  Administrative  Agent,  any  of  their  respective  Related  Parties  nor  any        correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of        the matters described in Section 2.03(e); provided, however, that anything in such clauses to the        contrary  notwithstanding,  the  Borrower  may  have  a  claim  against the  L/C  Issuer,  and  the  L/C        Issuer  may  be  liable  to  the  Borrower,  to  the  extent,  but  only  to  the  extent,  of  any  direct,  as                                        42  CHAR1\1593539v8  





 






      opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower        proves,  as  determined  by  a  final  nonappealable  judgment  of  a  court  of  competent jurisdiction,        were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful        failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight or        time draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.         In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that        appear on their face to be in order, without responsibility for further investigation, regardless of        any  notice  or  information  to  the  contrary,  and  the  L/C  Issuer  shall  not  be  responsible  for  the        validity  or  sufficiency  of  any  instrument  transferring,  endorsing  or  assigning  or  purporting  to        transfer,  endorse  or  assign  a  Letter  of  Credit  or  the  rights  or  benefits  thereunder  or  proceeds        thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.  The L/C        Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via        the  Society  for  Worldwide  Interbank  Financial  Telecommunication  (“SWIFT”)  message  or        overnight  courier,  or  any  other  commercially  reasonable  means  of  communicating  with  a        beneficiary.               (g)   Applicability of ISP; Limitation of Liability.  Unless otherwise expressly agreed        by  the  L/C  Issuer  and  the  Borrower  when  a  Letter  of  Credit  is  issued  (including  any  such        agreement  applicable  to  an  Existing  Letter  of  Credit),  the  rules  of  the  ISP  shall  apply  to  each        Letter of Credit.  Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the        Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired        by,  any  action  or  inaction  of  the  L/C  Issuer  required  or  permitted  under  any  Law,  order,  or        practice  that  is  required  or  permitted  to  be  applied  to  any  Letter  of  Credit  or  this  Agreement,        including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located,        the  practice  stated  in  the  ISP  or  UCP,  as  applicable,  or  in  the  decisions,  opinions,  practice        statements, or official commentary of the ICC Banking Commission, the Bankers Association for        Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute        of International Banking Law & Practice, whether or not any Letter of Credit chooses such Law        or practice.               (h)   Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for        the account of each Lender in accordance, subject to Section 2.15, with its Applicable Percentage,        in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the        Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under such        Letter of Credit.  For purposes of computing the daily amount available to be drawn under any        Letter  of  Credit,  the  amount  of  such  Letter  of  Credit  shall  be  determined  in  accordance  with        Section 1.06.  Letter of Credit Fees shall be (i) due and payable on the first Business Day after the        end of each March, June, September and December, commencing with the first such date to occur        after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter        on  demand  and  (ii)  computed  on  a  quarterly  basis  in  arrears.   If  there  is  any  change  in  the        Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of        Credit shall be computed and multiplied by the Applicable Rate separately for each period during        such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary        contained herein, upon the request of the Required Lenders, while any Event of Default exists, all        Letter of Credit Fees shall accrue at the Default Rate.               (i)   Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.         The Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee        with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed        on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on        a quarterly basis in arrears.  Such fronting fee shall be due and payable on the tenth Business Day                                        43  CHAR1\1593539v8  





 






      after the end of each March, June, September and December in respect of the most recently-ended        quarterly period (or portion thereof, in the case of the first payment), commencing with the first        such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration        Date  and  thereafter  on  demand.   For  purposes  of  computing  the  daily  amount  available  to  be        drawn  under  any  Letter  of  Credit,  the  amount  of  such  Letter  of  Credit  shall  be  determined  in        accordance with Section 1.06.  In addition, the Borrower shall pay directly to the L/C Issuer for        its  own  account,  in  Dollars,  the  customary  issuance,  presentation,  amendment  and  other        processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit        as from time to time in effect.  Such customary fees and standard costs and charges are due and        payable on demand and are nonrefundable.               (j)   Conflict with Issuer Documents.  In the event of any conflict between the terms        hereof and the terms of any Issuer Document, the terms hereof shall control.               (k)   Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit        issued  or  outstanding hereunder is in  support of  any  obligations  of, or  is  for  the  account  of, a        Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all        drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of        Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the        Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.         2.04  Swingline Loans.               (a)   Swingline  Facility.   Subject  to  the  terms  and  conditions  set  forth  herein,  the        Swingline Lender, in reliance upon the agreements of the other Lenders set forth in this Section        2.04, shall make loans (each such loan, a “Swingline Loan”) to the Borrower in Dollars from time        to time on any Business Day during the Availability Period in an aggregate amount not to exceed        at  any  time  outstanding  the  amount  of  the  Swingline  Sublimit  or  the  Swingline  Lender’s        Swingline  Commitment,  notwithstanding  the  fact  that  such  Swingline  Loans,  when  aggregated        with  the  Applicable  Percentage  of  the  Outstanding  Amount  of  Revolving  Loans  and  L/C        Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s        Revolving Commitment; provided, however, that (i) after giving effect to any Swingline Loan,        (A) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments        and (B) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving        Commitment, (ii) the Borrower shall not use the proceeds of any Swingline Loan to refinance any        outstanding Swingline Loan and (iii) the Swingline Lender shall not be under any obligation to        make  any  Swingline  Loan  if  it  shall  determine  (which  determination  shall  be  conclusive  and        binding  absent  manifest  error)  that  it  has,  or  by  such  Credit  Extension  may  have,  Fronting        Exposure.  Within the foregoing limits, and subject to the other terms and conditions hereof, the        Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under        this  Section  2.04.   Each  Swingline  Loan  shall  be  a  Base  Rate  Loan.   Immediately  upon  the        making  of  a  Swingline  Loan,  each  Lender  shall  be  deemed  to,  and  hereby  irrevocably  and        unconditionally  agrees  to,  purchase  from  the  Swingline  Lender  a  risk  participation  in  such        Swingline Loan in an amount equal to the product of such Lender’s Applicable Percentage times        the amount of such Swingline Loan.               (b)   Borrowing Procedures.  Each Borrowing of Swingline Loans shall be made upon        the Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which        may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic        notice must be confirmed promptly by delivery to the Swingline Lender and the Administrative        Agent of a Swingline Loan Notice.  Each such Swingline Loan Notice must be received by the                                        44  CHAR1\1593539v8  





 






      Swingline  Lender  and  the  Administrative  Agent  not  later  than  1:00  p.m.  on  the  requested        borrowing  date,  and  shall  specify  (i)  the  amount  to  be  borrowed,  which  shall  be  a  minimum        principal amount of $500,000, and (ii) the requested borrowing date, which shall be a Business        Day.   Promptly  after  receipt  by  the  Swingline  Lender  of  any  Swingline  Loan  Notice,  the        Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that        the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline        Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.         Unless  the  Swingline  Lender  has  received  notice  (by  telephone  or  in  writing)  from  the        Administrative Agent (including at the request of any Lender) prior to 1:00 p.m. on the date of        the proposed Borrowing of Swingline Loans (A) directing the Swingline Lender not to make such        Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of        Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not        then satisfied, then,  subject  to the terms  and  conditions  hereof, the Swingline Lender  will, not        later than 3:00 p.m. on the borrowing date specified in such Swingline Loan Notice, make the        amount of its Swingline Loan available to the Borrower.               (c)   Refinancing of Swingline Loans.                     (i)   The Swingline Lender at any time in its sole discretion may request, on              behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so              request on its behalf), that each Lender make a Revolving Loan that is a Base Rate Loan              in an amount equal to such Lender’s Applicable Percentage of the amount of Swingline              Loans then outstanding.  Such request shall be made in writing (which written request              shall  be  deemed  to  be  a  Loan  Notice  for  purposes  hereof)  and  in accordance  with  the              requirements  of  Section  2.02,  without  regard  to  the  minimum  and  multiples  specified              therein for the principal amount of Base Rate Loans, but subject to the unutilized portion              of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02.               The  Swingline  Lender  shall  furnish  the  Borrower  with  a  copy  of  the  applicable  Loan              Notice promptly after delivering such notice to the Administrative Agent.  Each Lender              shall make an amount equal to its Applicable Percentage of the amount specified in such              Loan Notice available to the Administrative Agent in immediately available funds (and              the  Administrative  Agent  may  apply  Cash  Collateral  available  with  respect  to  the              applicable Swingline Loan) for the account of the Swingline Lender at the Administrative              Agent’s  Office  not  later  than  1:00  p.m.  on  the  day  specified  in  such  Loan  Notice,              whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall              be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in              such  amount.   The  Administrative  Agent  shall  remit  the  funds  so  received  to  the              Swingline Lender.                     (ii)  If  for  any  reason  any  Swingline  Loan  cannot  be  refinanced  by  such  a              Borrowing  of  Revolving  Loans  in  accordance  with  Section  2.04(c)(i),  the  request  for              Revolving Loans that are Base Rate Loans submitted by the Swingline Lender as set forth              herein shall be deemed to be a request by the Swingline Lender that each of the Lenders              fund its risk participation in the relevant Swingline Loan and each Lender’s payment to              the  Administrative  Agent  for  the  account  of  the  Swingline  Lender  pursuant  to  Section              2.04(c)(i) shall be deemed payment in respect of such participation.                     (iii) If any Lender fails to make available to the Administrative Agent for the              account of the Swingline Lender any amount required to be paid by such Lender pursuant              to  the  foregoing  provisions  of  this  Section  2.04(c)  by  the  time  specified  in  Section              2.04(c)(i),  the  Swingline  Lender  shall  be  entitled  to  recover  from  such  Lender  (acting                                        45  CHAR1\1593539v8  





 






            through the Administrative Agent), on demand, such amount with interest thereon for the              period  from  the  date  such  payment  is  required  to  the  date  on  which  such  payment  is              immediately available to the Swingline Lender at a rate per annum equal to the greater of              the  Federal  Funds  Rate  and  a  rate  determined  by  the  Swingline  Lender  in  accordance              with  banking  industry  rules  on  interbank  compensation,  plus  any  administrative,              processing  or  similar  fees  customarily  charged  by  the  Swingline  Lender  in  connection              with  the  foregoing.   If  such  Lender  pays  such  amount  (with  interest  and  fees  as              aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in              the  relevant  Borrowing  or  funded  participation  in  the  relevant  Swingline  Loan,  as  the              case may be.  A certificate of the Swingline Lender submitted to any Lender (through the              Administrative Agent) with respect to any amounts owing under this clause (iii) shall be              conclusive absent manifest error.                     (iv)  Each Lender’s obligation to make Revolving Loans or to purchase and              fund  risk  participations  in  Swingline  Loans  pursuant  to  this  Section  2.04(c)  shall  be              absolute and unconditional and shall not be affected by any circumstance, including (A)              any setoff, counterclaim, recoupment, defense or other right that such Lender may have              against  the  Swingline  Lender,  the  Borrower  or  any  other  Person  for  any  reason              whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,              event  or  condition,  whether  or  not  similar to any  of the foregoing;  provided, however,              that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is              subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of              a Loan Notice).  No such funding of risk participations shall relieve or otherwise impair              the  obligation  of  the  Borrower  to  repay  Swingline  Loans,  together  with  interest  as              provided herein.               (d)   Repayment of Participations.                     (i)   At  any  time  after  any  Lender  has  purchased  and  funded  a  risk              participation  in  a  Swingline  Loan,  if  the  Swingline  Lender  receives  any  payment  on              account of such Swingline Loan, the Swingline Lender will distribute to such Lender its              Applicable  Percentage  thereof  in  the  same  funds  as  those  received  by  the  Swingline              Lender.                     (ii)  If any payment received by the Swingline Lender in respect of principal              or  interest  on  any  Swingline  Loan  is  required  to  be  returned  by  the  Swingline  Lender              under  any  of  the  circumstances  described  in  Section  11.05  (including  pursuant  to  any              settlement entered into by the Swingline Lender in its discretion), each Lender shall pay              to  the  Swingline  Lender  its  Applicable  Percentage  thereof  on  demand  of  the              Administrative Agent, plus interest thereon from the date of such demand to the date such              amount  is  returned,  at  a  rate  per  annum  equal  to  the  Federal  Funds  Rate.   The              Administrative Agent will make such demand upon the request of the Swingline Lender.               The obligations of the Lenders under this clause shall survive the payment in full of the              Obligations and the termination of this Agreement.               (e)   Interest  for  Account  of  Swingline  Lender.   The  Swingline  Lender  shall  be        responsible for invoicing the Borrower for interest on the Swingline Loans.  Until each Lender        funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section        2.04 to refinance such Lender’s Applicable Percentage of any Swingline Loan, interest in respect        of such Applicable Percentage shall be solely for the account of the Swingline Lender.                                         46  CHAR1\1593539v8  





 






            (f)   Payments Directly to Swingline Lender.  The Borrower shall make all payments        of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.         2.05  Prepayments.               (a)   Voluntary Prepayments of Loans.                     (i)   Revolving Loans.  The Borrower may, upon delivery of a Notice of Loan              Prepayment  to the  Administrative  Agent,  at  any  time  or  from  time  to  time  voluntarily              prepay Revolving Loans in whole or in part without premium or penalty; provided that,              unless otherwise agreed by the Administrative Agent, (A) such notice must be received              by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to              any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of              Base  Rate  Loans;  (B)  any  such  prepayment  of  Eurodollar  Rate  Loans  shall  be  in  a              principal amount of $2,500,000 or a whole multiple of $500,000 in excess thereof (or, if              less,  the entire  principal  amount thereof then  outstanding);  and  (C)  any  prepayment  of              Base  Rate  Loans  shall  be  in  a  principal  amount  of  $500,000  or  a  whole  multiple  of              $100,000  in  excess  thereof  (or,  if  less,  the  entire  principal  amount  thereof  then              outstanding).  Each such notice shall specify the date and amount of such prepayment and              the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the              Interest  Period(s)  of  such Loans.  The  Administrative  Agent will  promptly  notify  each              Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable              Percentage of such prepayment.  If such notice is given by the Borrower, the Borrower              shall make such prepayment and the payment amount specified in such notice shall be              due  and  payable  on  the  date  specified  therein.   Any  prepayment  of  a  Eurodollar  Rate              Loan shall be accompanied by all accrued interest on the amount prepaid, together with              any additional amounts required pursuant to Section 3.05.  Subject to Section 2.15, each              such prepayment shall be applied to the Loans of the applicable Lenders in accordance              with their respective Applicable Percentages.                     (ii)  Swingline  Loans.   The  Borrower  may,  upon  notice  to  the  Swingline              Lender  (with  a  copy  to  the  Administrative  Agent),  at  any  time  or  from  time  to  time,              voluntarily  prepay  Swingline  Loans  in  whole  or  in  part  without  premium  or  penalty;              provided that, unless otherwise agreed by the Swingline Lender, (i) such notice must be              received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m.              on  the  date  of  the  prepayment,  and  (ii)  any  such  prepayment  shall  be  in  a  minimum              principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if              less,  the  entire  principal  thereof  then  outstanding).   Each  such  notice  shall  specify  the              date  and  amount  of  such  prepayment.   If  such  notice  is  given  by  the  Borrower,  the              Borrower shall make such prepayment and the payment amount specified in such notice              shall be due and payable on the date specified therein.  Any prepayment of a Swingline              Loan shall be accompanied by all accrued interest on the amount prepaid.               (b)   Mandatory  Prepayments  of  Loans.   If  for  any  reason  the  Total  Revolving        Outstandings  at  any  time  exceed  the  Aggregate  Revolving  Commitments  then  in  effect,  the        Borrower  shall  immediately  prepay  Revolving  Loans  and/or  Swingline  Loans  and/or  Cash        Collateralize  the  L/C  Obligations  in  an  aggregate  amount  equal  to  such  excess;  provided,        however,  that  the  Borrower  shall  not  be  required  to  Cash  Collateralize  the  L/C  Obligations        pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and        Swingline  Loans  the  Total  Revolving  Outstandings  exceed  the  Aggregate  Revolving        Commitments then in effect.  All amounts required to be paid pursuant to this Section 2.05(b)                                        47  CHAR1\1593539v8  





 






      shall  be  applied  first,  ratably  to  the  L/C  Borrowings  and  the  Swingline  Loans,  second,  to  the        outstanding Revolving Loans, and, third, to Cash Collateralize the remaining L/C Obligations.               Within the parameters of the applications set forth above, prepayments shall be applied              first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest              Period maturities.  All prepayments under this Section 2.05(b) shall be subject to Section              3.05, but otherwise without premium or penalty, and shall be accompanied by interest              on the principal amount prepaid through the date of prepayment.         2.06  Termination or Reduction of Aggregate Revolving Commitments.         The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving  Commitments, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to time permanently  reduce the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swingline Sublimit;  provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m.  five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be  in  an  aggregate amount of $5,000,000 or any whole multiple  of  $1,000,000 in excess thereof, (iii) the  Borrower  shall  not  terminate  or  reduce  the  Aggregate  Revolving  Commitments  if,  after  giving  effect  thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed  the  Aggregate  Revolving  Commitments,  (iv)  the  Borrower  shall  not  terminate  or  reduce  the  Letter  of  Credit  Sublimit  if,  after  giving  effect  thereto  and  to  any  concurrent  prepayments  hereunder,  the  Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit, (v) the Borrower  shall not terminate or reduce the Swingline Sublimit if, after giving effect thereto and to any concurrent  prepayments  hereunder,  the  Outstanding  Amount  of  Swingline  Loans  would  exceed  the  Swingline  Sublimit and (vi) if, after giving effect to any reduction of the Aggregate Revolving Commitments, the  Letter  of  Credit  Sublimit  or  the  Swingline  Sublimit  exceeds  the  amount  of  the  Aggregate  Revolving  Commitments,  such  sublimit  shall  be  automatically  reduced  by  the  amount  of  such  excess.   The  Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction.   Any reduction of the Aggregate Revolving Commitments shall be applied to the Revolving Commitment  of each Lender according to its Applicable Percentage.  All fees accrued until the effective date of any  termination  of  the  Aggregate  Revolving  Commitments  shall  be  paid  on  the  effective  date  of  such  termination.         2.07  Repayment of Loans.               (a)   Revolving Loans.  The Borrower shall repay to the Lenders on the Maturity Date        the aggregate principal amount of all Revolving Loans outstanding on such date.               (b)   Swingline Loans.  The Borrower shall repay each Swingline Loan on the earlier        to occur of (i) the date ten (10) Business Days after such Swingline Loan is made and (ii) the        Maturity Date.         2.08  Interest.               (a)   Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan        shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate        per annum equal to the sum of the Eurodollar Rate for such Interest Period plus the Applicable        Rate;  (ii)  each  Base  Rate  Loan  shall  bear  interest  on  the  outstanding  principal  amount  thereof        from the applicable borrowing date at a rate per annum equal to the sum of the Base Rate plus the        Applicable  Rate; and (iii) each Swingline Loan shall  bear interest  on  the outstanding  principal        amount thereof from the applicable borrowing date at a rate per annum equal to the sum of the                                         48  CHAR1\1593539v8  





 






      Base  Rate  plus  the  Applicable  Rate.   To  the  extent  that  any  calculation  of  interest  or  any  fee        required to be paid under this Agreement shall be based on (or result in) a calculation that is less        than zero, such calculation shall be deemed zero for purposes of this Agreement.               (b)   (i)   If  any  amount  of principal of  any  Loan  is  not  paid when  due (without        regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise,        such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal        to the Default Rate to the fullest extent permitted by applicable Laws.                     (ii)  If  any  amount  (other  than  principal  of  any  Loan)  payable  by  the              Borrower  under  any  Loan  Document  is  not  paid  when  due  (after  giving  effect  to  any              applicable grace periods), whether at stated maturity, by acceleration or otherwise, then              upon  the  written  request  of  the  Required  Lenders,  such  amount  shall  thereafter  bear              interest at a fluctuating interest rate per annum at all times equal to the Default Rate to              the fullest extent permitted by applicable Laws.                     (iii)  Upon the request of the Required Lenders, while any Event of Default              exists (other than as set forth in clauses (b)(i) and (b)(ii) above), the Borrower shall pay              interest on the principal amount of all outstanding Obligations hereunder at a fluctuating              interest  rate  per  annum  at  all  times  equal  to  the  Default  Rate  to  the  fullest  extent              permitted by applicable Laws.                     (iv)  Accrued and unpaid interest on past due amounts (including interest on              past due interest) shall be due and payable upon demand.               (c)   Interest  on  each  Loan  shall  be  due  and  payable  in  arrears  on  each  Interest        Payment  Date  applicable  thereto  and  at  such  other  times  as  may  be  specified  herein.   Interest        hereunder  shall  be  due  and  payable  in  accordance  with  the  terms  hereof  before  and  after        judgment, and before and after the commencement of any proceeding under any Debtor Relief        Law.         2.09  Fees.         In addition to certain fees described in subsections (h) and (i) of Section 2.03:               (a)   Commitment Fee.  The Borrower shall pay to the Administrative Agent, for the        account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to        the product of (i) the Applicable Rate for such commitment fee times (ii) the actual daily amount        by which the Aggregate Revolving Commitments exceed the sum of (y) the Outstanding Amount        of Revolving Loans and (z) the Outstanding Amount of L/C Obligations, subject to adjustment as        provided  in  Section  2.15.   For  the  avoidance  of  doubt,  the  Outstanding  Amount  of  Swingline        Loans  shall  not  be  counted  towards  or  considered  usage  of  the  Aggregate  Revolving        Commitments  for  purposes  of  determining  the  commitment  fee.   The  commitment  fee  shall        accrue at all times during the Availability Period, including at any time during which one or more        of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the        last  Business  Day  of  each  March,  June,  September  and  December,  commencing  with  the  first        such date to occur after the Closing Date, and on the last day of the Availability Period.  The        commitment  fee  shall  be  calculated  quarterly  in  arrears,  and  if  there  is  any  change  in  the        Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by        the Applicable Rate separately for each period during such quarter that such Applicable Rate was        in effect.                                         49  CHAR1\1593539v8  





 






            (b)   Other Fees.                     (i)   The  Borrower  shall  pay  to  MLPFS  and  the  Administrative  Agent  for              their own respective accounts fees in the amounts and at the times specified in the Fee              Letter.   Such fees  shall  be  fully  earned  when paid  and  shall not  be refundable  for  any              reason whatsoever.                     (ii)  The  Borrower  shall  pay  to  the  Lenders  such  fees  as  shall  have  been              separately agreed upon in writing in the amounts and at the times so specified.  Such fees              shall be fully earned when paid and shall not be refundable for any reason whatsoever.         2.10  Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.               (a)   All  computations  of  interest  for  Base  Rate  Loans  (including  Base  Rate  Loans        determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or        366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest        shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees        or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest        shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan,        or any portion thereof, for the day on which the Loan or such portion is paid; provided that any        Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear        interest for one day.  Each determination by the Administrative Agent of an interest rate or fee        hereunder shall be conclusive and binding for all purposes, absent manifest error.               (b)   If, as a result of any restatement of or other adjustment to the financial statements        of  the  Borrower  or  for  any  other  reason,  the  Borrower  or  the  Lenders  determine  that  (i)  the        Consolidated  Leverage  Ratio  as  calculated  by  the  Borrower  as  of  any  applicable  date  was        inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in        higher pricing for such period, the Borrower shall immediately and retroactively be obligated to        pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as        the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an        actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy        Code of the United States, automatically and without further action by the Administrative Agent,        any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees        that should have been paid for such period over the amount of interest and fees actually paid for        such period.  This paragraph shall not limit the rights of the Administrative Agent, any Lender or        the  L/C  Issuer,  as  the  case  may  be,  under  this  Agreement  to  the  payment  of  any  Obligations        hereunder  at  the  Default  Rate  or  under  Article  VIII.   The  Borrower’s  obligations  under  this        paragraph  shall  survive  the  termination  of  the  Aggregate  Revolving  Commitments  and  the        repayment of all other Obligations hereunder.         2.11  Evidence of Debt.               (a)   The Credit Extensions made by each Lender shall be evidenced by one or more        accounts or records maintained by such Lender and by the Administrative Agent in the ordinary        course of business.  The accounts or records maintained by the Administrative Agent and each        Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by        the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or        any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower        hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict        between the accounts and records maintained by any Lender and the accounts and records of the                                         50  CHAR1\1593539v8  





 






      Administrative Agent in respect of such matters, the accounts and records of the Administrative        Agent  shall  control  in  the  absence  of  manifest  error.   Upon  the  request  of  any  Lender  made        through  the  Administrative  Agent,  the  Borrower  shall  execute  and  deliver  to  such  Lender        (through the Administrative Agent) a promissory note, which shall evidence such Lender’s Loans        in addition to such accounts or records.  Each such promissory note shall be substantially in the        form of Exhibit 2.11(a) (a “Note”).  Each Lender may attach schedules to its Note and endorse        thereon  the  date,  Type  (if  applicable),  amount  and  maturity  of  its  Loans  and  payments  with        respect thereto.               (b)   In addition to the accounts and records referred to in subsection (a) above, each        Lender  and  the  Administrative  Agent  shall  maintain  in  accordance  with  its  usual  practice        accounts or records evidencing the purchases and sales by such Lender of participations in Letters        of Credit and Swingline Loans.  In the event of any conflict between the accounts and records        maintained by the Administrative Agent and the accounts and records of any Lender in respect of        such matters, the accounts and records of the Administrative Agent shall control in the absence of        manifest error.         2.12  Payments Generally; Administrative Agent’s Clawback.               (a)   General.  All payments to be made by the Borrower shall be made free and clear        of  and  without  condition  or  deduction  for  any  counterclaim,  defense,  recoupment  or  setoff.         Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be        made  to  the  Administrative  Agent,  for  the  account  of  the  respective  Lenders  to  which  such        payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available        funds  not  later  than  2:00  p.m.  on  the  date  specified  herein.   The  Administrative  Agent  will        promptly  distribute  to  each  Lender  its  Applicable  Percentage  (or  other  applicable  share  as        provided  herein)  of  such  payment  in  like  funds  as  received  by  wire  transfer  to  such  Lender’s        Lending  Office.   All  payments  received  by  the  Administrative  Agent  after  2:00  p.m.  shall  be        deemed  received  on the next succeeding  Business  Day  and  any  applicable  interest  or fee  shall        continue to accrue.  If any payment to be made by the Borrower shall come due on a day other        than  a  Business  Day,  payment  shall  be  made  on  the  next  following  Business  Day,  and  such        extension of time shall be reflected in computing interest or fees, as the case may be.               (b)   (i)   Funding by Lenders; Presumption by Administrative Agent.  Unless the        Administrative Agent shall have received notice from a Lender prior to the proposed date of any        Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior        to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the        Administrative  Agent  such  Lender’s  share  of  such  Borrowing,  the  Administrative  Agent  may        assume that such Lender has made such share available on such date in accordance with Section        2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share        available in accordance with and at the time required by Section 2.02) and may, in reliance upon        such assumption, make available to the Borrower a corresponding amount.  In such event, if a        Lender has not in fact made its share of the applicable Borrowing available to the Administrative        Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative        Agent  forthwith  on  demand  such  corresponding  amount  in  immediately  available  funds  with        interest thereon, for each day from and including the date such amount is made available to the        Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of        a  payment  to  be  made  by  such  Lender,  the  greater  of  the  Federal  Funds  Rate  and  a  rate        determined by the Administrative Agent in accordance with banking industry rules on interbank        compensation,  plus  any  administrative,  processing  or  similar  fees  customarily  charged  by  the        Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be                                        51  CHAR1\1593539v8  





 






      made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such        Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,        the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid        by the Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the        Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in        such  Borrowing.   Any  payment  by  the  Borrower  shall  be  without  prejudice  to  any  claim  the        Borrower  may  have  against  a  Lender  that  shall  have  failed  to  make  such  payment  to  the        Administrative Agent.                     (ii)  Payments by Borrower; Presumptions by Administrative Agent.  Unless              the Administrative Agent shall have received notice from the Borrower prior to the date              on which any payment is due to the Administrative Agent for the account of the Lenders              or  the  L/C  Issuer  hereunder  that  the  Borrower  will  not  make  such  payment,  the              Administrative Agent may assume that the Borrower has made such payment on such              date in accordance herewith and may, in reliance upon such assumption, distribute to the              Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the              Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer,              as the case may be, severally agrees to repay to the Administrative Agent forthwith on              demand  the  amount  so  distributed  to  such  Lender  or  the  L/C  Issuer,  in  immediately              available  funds  with  interest  thereon,  for  each  day  from  and  including  the  date  such              amount is distributed to it to but excluding the date of payment to the Administrative              Agent,  at  the  greater  of  the  Federal  Funds  Rate  and  a  rate  determined  by  the              Administrative  Agent  in  accordance  with  banking  industry  rules  on  interbank              compensation.         A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount  owing under this subsection (b) shall be conclusive, absent manifest error.               (a)   Failure  to  Satisfy  Conditions  Precedent.   If  any  Lender  makes  available to  the        Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing        provisions  of  this  Article  II,  and  such  funds  are  not  made  available  to  the  Borrower  by  the        Administrative  Agent  because  the  conditions  to  the  applicable  Credit  Extension  set  forth  in        Article  IV  are  not  satisfied  or  waived in accordance  with  the  terms  hereof,  the  Administrative        Agent  shall  return  such  funds  (in  like  funds  as  received  from  such  Lender)  to  such  Lender,        without interest.               (b)   Obligations  of  Lenders  Several.   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 11.04(c) are several and not joint.  The failure of any Lender to        make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on        any date required hereunder shall not relieve any other Lender of its corresponding obligation to        do so on such date, and no Lender shall be responsible for the failure of any other Lender to so        make its Loan, to purchase its participation or to make its payment under Section 11.04(c).               (c)   Funding  Source.   Nothing  herein  shall  be  deemed  to  obligate  any  Lender  to        obtain the funds for any Loan in any particular place or manner or to constitute a representation        by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or        manner.         2.13  Sharing of Payments by Lenders.                                         52  CHAR1\1593539v8  





 






      If  any  Lender  shall,  by  exercising  any  right  of  setoff  or  counterclaim  or  otherwise,  obtain  payment in respect of any principal of or interest on any of the Loans made by it, or the participations in  L/C  Obligations  or  in  Swingline  Loans  held  by  it  resulting  in  such  Lender’s  receiving  payment  of  a  proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater  than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall  (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in  the Loans and subparticipations in L/C Obligations and Swingline Loans of the other Lenders, or make  such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the  Lenders  ratably  in  accordance  with  the  aggregate  amount  of  principal  of  and  accrued  interest  on  their  respective Loans and other amounts owing them; provided that:                     (i)   if  any  such  participations  or  subparticipations  are  purchased  and  all  or              any  portion  of  the  payment  giving  rise  thereto  is  recovered,  such  participations  or              subparticipations shall be rescinded and the purchase price restored to the extent of such              recovery, without interest; and                     (ii)  the provisions of this Section shall not be construed to apply to (A) any              payment made by or on behalf of the Borrower pursuant to and in accordance with the              express  terms  of  this  Agreement  (including  the  application  of  funds  arising  from  the              existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in              Section  2.14,  or  (C)  any  payment  obtained  by  a  Lender  as  consideration  for  the              assignment of or sale of a participation in any of its Loans or subparticipations in L/C              Obligations or Swingline Loans to any assignee or participant, other than an assignment              to  any  Loan  Party  or  any  Subsidiary  (as  to  which  the  provisions  of  this  Section  shall              apply).         Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under  applicable  Law, that  any Lender  acquiring  a participation  pursuant to  the  foregoing arrangements  may  exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as  fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.         2.14  Cash Collateral.               (a)   Certain  Credit  Support  Events.   If  (i)  the  L/C  Issuer  has  honored  any  full  or        partial  drawing  request  under  any  Letter  of  Credit  and  such  drawing  has  resulted  in  an  L/C        Borrowing,  (ii)  as  of  the  Letter  of  Credit  Expiration  Date,  any  L/C  Obligation  for  any  reason        remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to        Section  2.05  or  8.02(c)  or  (iv)  there  shall  exist  a  Defaulting  Lender,  the  Borrower  shall        immediately (in the case of clause (iii) above) or within one Business Day (in all other cases)        following  any  written  request  by  the  Administrative  Agent  or  the  L/C  Issuer  provide  Cash        Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in        the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section        2.15(b) and any Cash Collateral provided by the Defaulting Lender).  For purposes of providing        Cash Collateral pursuant to subclause (ii) above, such Cash Collateralization may be effected by        means of a Borrowing of Revolving Loans (assuming for such purposes that the Letters of Credit        had been fully drawn on the Letter of Credit Expiration Date).               (b)   Grant  of  Security  Interest.   The  Borrower,  and  to  the  extent  provided  by  any        Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the        Administrative  Agent,  for  the  benefit  of  the  Administrative  Agent,  the  L/C  Issuer  and  the        Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts                                        53  CHAR1\1593539v8  





 






      and all balances therein, and all other property so provided as collateral pursuant hereto, and in all        proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be        applied pursuant to Section 2.14(c).  If at any time the Administrative Agent determines that Cash        Collateral is subject to any right or claim of any Person other than the Administrative Agent or        the L/C Issuer as herein provided (other than Liens permitted under Section 7.01(m)), or that the        total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower        will,  promptly  upon  written  demand  by  the  Administrative  Agent,  pay  or  provide  to  the        Administrative  Agent  additional  Cash  Collateral  in  an  amount  sufficient  to  eliminate  such        deficiency.   All  Cash  Collateral  (other  than  credit  support  not  constituting  funds  subject  to        deposit)  shall  be  maintained  in  blocked,  non-interest  bearing  deposit  accounts  at  Bank  of        America.  The Borrower shall pay on written demand therefor from time to time all customary        account  opening,  activity  and  other  administrative  fees  and  charges  in  connection  with  the        maintenance and disbursement of Cash Collateral.               (c)   Application.   Notwithstanding  anything  to  the  contrary  contained  in  this        Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15        or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific        L/C  Obligations,  obligations  to  fund  participations  therein  (including,  as  to  Cash  Collateral        provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations        for which the Cash Collateral was so provided, prior to any other application of such property as        may otherwise be provided for herein.               (d)   Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce        Fronting  Exposure  or  to  secure  other  obligations  shall  be  released  promptly  following  (i)  the        elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including        by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its        assignee  following  compliance  with  Section  11.06(b)(vi)))  or  (ii)  the  determination  by  the        Administrative  Agent  and  the  L/C  Issuer  that  there  exists  excess  Cash  Collateral;  provided,        however,  (x)  any  such  release  shall  be  without  prejudice  to,  and  any  disbursement  or  other        transfer  of  Cash  Collateral  shall  be  and  remain  subject  to,  any  other  Lien  conferred  under  the        Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person        providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released        but instead held to support future anticipated Fronting Exposure or other obligations.         2.15  Defaulting Lenders.               (a)   Adjustments.   Notwithstanding  anything  to  the  contrary  contained  in  this        Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no        longer a Defaulting Lender, to the extent permitted by applicable Law:                     (i)   Waivers and Amendments.  Such Defaulting Lender’s right to approve or              disapprove  any  amendment,  waiver  or consent  with respect to this  Agreement shall be              restricted as set forth in the definition of “Required Lenders” and Section 11.01.                     (ii)  Defaulting Lender Waterfall.  Any payment of principal, interest, fees or              other amounts received by the Administrative Agent for the account of such Defaulting              Lender  (whether  voluntary  or  mandatory,  at  maturity,  pursuant  to  Article  VIII  or              otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to              Section  11.08  shall  be  applied  at  such  time  or  times  as  may  be  determined  by  the              Administrative  Agent  as  follows:  first,  to  the  payment  of  any  amounts  owing  by  such              Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a                                        54  CHAR1\1593539v8  





 






            pro  rata  basis  of  any  amounts  owing  by  such  Defaulting  Lender  to  the  L/C  Issuer  or              Swingline  Lender  hereunder;  third,  to  Cash  Collateralize  the  L/C  Issuer’s  Fronting              Exposure with respect to such Defaulting Lender in accordance with Section 2.14; fourth,              as the Borrower may request (so long as no Default exists), to the funding of any Loan in              respect of which such Defaulting Lender has failed to fund its portion thereof as required              by this Agreement, as determined by the Administrative Agent; fifth, if so determined by              the Administrative Agent and the Borrower, to be held in a deposit account and released              pro  rata  in  order  to  (x)  satisfy  such  Defaulting  Lender’s  potential  future  funding              obligations  with  respect to  Loans  under this Agreement and (y)  Cash  Collateralize the              L/C  Issuer’s  future  Fronting  Exposure  with  respect  to  such  Defaulting  Lender  with              respect  to  future  Letters  of  Credit  issued  under  this  Agreement,  in  accordance  with              Section 2.14; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer              or  Swingline  Lender  as  a  result  of  any  judgment  of  a  court  of  competent  jurisdiction              obtained by any Lender, the L/C Issuer or the Swingline Lender against such Defaulting              Lender  as  a  result  of  such  Defaulting  Lender’s  breach  of  its  obligations  under  this              Agreement;  seventh,  so  long  as  no  Event  of  Default  exists,  to  the  payment  of  any              amounts  owing  to  the  Borrower  as  a  result  of  any  judgment  of  a  court  of  competent              jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such              Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such              Defaulting  Lender  or  as  otherwise  as  may  be  required  under  the  Loan  Documents  in              connection  with  any  Lien  conferred  thereunder  or  directed  by  a  court  of  competent              jurisdiction; provided that if (x) such payment is a payment of the principal amount of              any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully              funded  its  appropriate  share,  and  (y)  such  Loans  were  made  or  the  related  Letters  of              Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied              or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations              owed  to,  all  Non-Defaulting  Lenders  on  a  pro  rata  basis  prior  to  being  applied  to  the              payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such              time  as  all  Loans  and  funded  and  unfunded  participations  in  L/C  Obligations  and              Swingline Loans are held by the Lenders pro rata in accordance with the Commitments              hereunder without giving effect to Section 2.15(b).  Any payments, prepayments or other              amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts              owed  by  a  Defaulting  Lender  or  to  post  Cash  Collateral  pursuant  to  this  Section              2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each              Lender irrevocably consents hereto.                     (iii) Certain Fees.                           (A)   No Defaulting Lender shall be entitled to receive any fee payable                     under Section 2.09(a) for any period during which that Lender is a Defaulting                     Lender  (and  the  Borrower  shall  not  be  required  to  pay  any  such  fee  that                     otherwise  would  have  been  required  to  have  been  paid  to  that  Defaulting                     Lender).                           (B)   Each  Defaulting  Lender  shall  be  entitled  to  receive  Letter  of                     Credit  Fees  for  any  period  during  which  that  Lender  is  a  Defaulting  Lender                     only to the extent allocable to its Applicable Percentage of the stated amount of                     Letters of Credit for which it has provided Cash Collateral pursuant to Section                     2.14.                                          55  CHAR1\1593539v8  





 






                        (C)   With respect to any Letter of Credit Fee not required to be paid                     to any Defaulting Lender pursuant to clause (B) above, the Borrower shall (x)                     pay  to  each  Non-Defaulting  Lender  that  portion  of  any  such  fee  otherwise                     payable  to  such  Defaulting  Lender  with  respect  to  such  Defaulting  Lender’s                     participation  in  L/C  Obligations  that  has  been  reallocated  to  such  Non-                    Defaulting Lender pursuant to clause (b) below, (y) pay to the L/C Issuer the                     amount  of  any  such  fee  otherwise  payable  to  such  Defaulting  Lender  to  the                     extent  allocable  to  such  L/C  Issuer’s  Fronting  Exposure  to  such  Defaulting                     Lender, and (z) not be required to pay the remaining amount of any such fee.               (b)   Reallocation of Applicable Percentages to Reduce Fronting Exposure.  All or any        part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be        reallocated  among  the  Non-Defaulting  Lenders  in  accordance  with  their  respective  Applicable        Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the        extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-       Defaulting  Lender  to  exceed  such  Non-Defaulting  Lender’s  Commitment.   Subject  to  Section        11.20,  no  reallocation hereunder  shall  constitute  a  waiver  or release  of  any claim  of  any  party        hereunder  against  a  Defaulting  Lender  arising  from  that  Lender  having  become  a  Defaulting        Lender,  including  any  claim  of  a  Non-Defaulting  Lender  as  a  result  of  such  Non-Defaulting        Lender’s increased exposure following such reallocation.               (c)   Cash Collateral, Repayment of Swingline Loans.  If the reallocation described in        clause (b) above cannot, or can only partially, be effected, the Borrower shall, without prejudice        to  any  right  or  remedy  available  to  it  hereunder  or  under  applicable  Law,  (x)  first,  prepay        Swingline  Loans  in  an  amount  equal  to  the  Swingline  Lenders’  Fronting  Exposure  and  (y)        second, Cash Collateralize the L/C Issuer’s Fronting Exposure in accordance with the procedures        set forth in Section 2.14.               (d)   Defaulting  Lender  Cure.   If  the  Borrower,  the  Administrative  Agent,  the        Swingline  Lender and  the  L/C  Issuer  agree  in  writing  that  a  Lender  is  no  longer  a  Defaulting        Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective        date specified in such notice and subject to any conditions set forth therein (which may include        arrangements with respect to any Cash Collateral), that such Lender will, to the extent applicable,        purchase at par that portion of outstanding Loans of the other Lenders or take such other actions        as the Administrative Agent may determine to be necessary to cause the Loans and funded and        unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by        the  Lenders  in  accordance  with  their  Applicable  Percentages  (without  giving  effect  to  Section        2.15(b)),  whereupon  such  Lender  will  cease  to  be  a  Defaulting  Lender;  provided  that  no        adjustments will be made retroactively with respect to fees accrued or payments made by or on        behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that        except to the extent otherwise expressly agreed by the affected parties, no change hereunder from        Defaulting  Lender  to  Lender  will  constitute  a  waiver  or  release  of  any  claim  of  any  party        hereunder arising from that Lender’s having been a Defaulting Lender.         2.16  Incremental Revolving Loans.         Subject to the terms and conditions set forth herein, the Borrower shall have the right, from time  to time and upon at least ten (10) Business Days’ prior written notice to the Administrative Agent (an  “Incremental Request”), to request to increase the Aggregate Revolving Commitments (the “Incremental  Revolving  Commitments”;  revolving  loans  made  thereunder  the  “Incremental  Revolving  Loans”;  and                                         56  CHAR1\1593539v8  





 






each such increase, an “Incremental Facility”); subject, however, in any such case, to satisfaction of the  following conditions precedent:               (a)   the  aggregate  amount  of  all  Incremental  Revolving  Commitments  effected        pursuant to this Section 2.16 shall not exceed $150,000,000;               (b)   on  the  date  on  which  any  Incremental  Facility  Amendment  is  to  become        effective, both immediately prior to and immediately after giving effect to the incurrence of such        Incremental Revolving Loans (assuming that the full amount of the Incremental Revolving Loans        shall have been funded on such date) and any related transactions, no Default or Event of Default        shall have occurred and be continuing;                (c)   after  giving  effect  to  the  incurrence  of  such  Incremental  Revolving  Loans        (assuming the full amount of the Incremental Revolving Loans have been funded) and any related        transactions, on a  Pro  Forma Basis, the  Loan  Parties  shall  be in compliance  with the financial        covenants set forth in Section 7.11;               (d)   the representations and warranties set forth in Article V shall be true and correct        in  all  material  respects  (or  if  such  representation  and  warranty  is  qualified  by  materiality  or        Material  Adverse  Effect,  it  shall  be  true  and  correct)  on  and  as  of  the  date  on  which  such        Incremental  Facility  Amendment  is  to  become  effective,  except  to  the  extent  that  such        representations and warranties specifically refer to an earlier date, in which case they shall be true        and  correct  in  all  material  respects  (or  if  such  representation  and  warranty  is  qualified  by        materiality or Material Adverse Effect, it shall be true and correct) as of such earlier date;               (e)   such  Incremental  Revolving  Loans  shall  be  in  a  minimum  amount  of        $50,000,000 and in integral multiples of $10,000,000 in excess thereof (or such lesser amounts as        agreed by the Administrative Agent);               (f)   any Incremental Revolving Commitments shall be made on the same terms and        provisions (other than upfront fees) as apply to the existing Revolving Commitments, including        with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a        credit facility  separate and  apart from  the  existing  revolving  credit facility  set forth in  Section        2.01;               (g)   the  Administrative  Agent  shall  have  received  additional  commitments  in  a        corresponding  amount  of  such  requested  Incremental  Revolving  Loans  from  either  existing        Lenders  and/or  one  or  more  other  institutions  that  qualify  as  Eligible  Assignees  (it  being        understood  and  agreed  that  no  existing  Lender  shall  be  required  to  provide  an  additional        commitment); and               (h)   the Administrative Agent shall have received customary closing certificates and        legal opinions and all other documents (including resolutions of the board of directors of the Loan        Parties) it may reasonably request relating to the corporate or other necessary authority for such        Incremental  Revolving  Loans  and  the  validity  of  such  Incremental  Revolving  Loans,  and  any        other  matters  relevant  thereto,  all  in  form  and  substance  reasonably  satisfactory  to  the        Administrative Agent.         Any Incremental Revolving Commitments shall be evidenced by an amendment (an “Incremental  Facility  Amendment”)  to  this  Agreement,  giving  effect  to  the  modifications  permitted  by  this  Section  2.16 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the                                         57  CHAR1\1593539v8  





 






Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Revolving  Commitments;  which  such  amendment,  when  so  executed,  shall  amend  this  Agreement  as  provided  therein.   Each  Incremental  Facility  Amendment  shall  also  require  such  amendments  to  the  Loan  Documents,  and  such  other  new  Loan  Documents,  as  the  Administrative  Agent  reasonably  deems  necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16.   Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or  such other new Loan Documents, shall be required to be executed or approved by any Lender, other than  the Lenders providing such Incremental Revolving Commitments, and the Administrative Agent, in order  to  be  effective.   The  effectiveness  of  any  Incremental  Facility  Amendment  shall  be  subject  to  the  satisfaction on the date thereof of each of the conditions set forth above and as such other conditions as  requested by the Lenders under the Incremental Facility established in connection therewith.                                    ARTICLE III.                    TAXES, YIELD PROTECTION AND ILLEGALITY         3.01  Taxes.                (a)   Payments  Free  of  Taxes;  Obligation  to  Withhold;  Payments  on  Account  of        Taxes.                     (i)   Any and all payments by or on account of any obligation of any Loan              Party under any Loan Document shall be made without deduction or withholding for any              Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in              the  good  faith  discretion  of  the  Administrative  Agent  and  any  such  Loan  Party,  as              applicable) require the deduction or withholding of any Tax from any such payment by              the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan              Party  shall  be  entitled  to  make  such  deduction  or  withholding,  upon  the  basis  of  the              information and documentation to be delivered pursuant to subsection (e) below.                     (ii)  If any Loan Party or the Administrative Agent shall be required by the              Internal  Revenue  Code  to  withhold  or  deduct  any  Taxes,  including  both  United  States              Federal  backup  withholding  and  withholding  taxes,  from  any  payment,  then  (A)  the              Administrative Agent shall withhold or make such deductions as are determined by the              Administrative Agent to be required based upon the information and documentation it has              received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay              the  full  amount  withheld  or  deducted  to  the  relevant  Governmental  Authority  in              accordance with the Internal Revenue Code, and (C) to the extent that the withholding or              deduction is made on account of Indemnified Taxes, the sum payable by the applicable              Loan Party shall be increased as necessary so that after any required withholding or the              making  of  all  required  deductions  (including  deductions  applicable  to  additional  sums              payable under this Section 3.01) the applicable Recipient receives an amount equal to the              sum it would have received had no such withholding or deduction been made.                     (iii) If any Loan Party or the Administrative Agent shall be required by any              applicable Laws other than the Internal Revenue Code to withhold or deduct any Taxes              from any payment, then (A) such Loan Party or the Administrative Agent, as required by              such Laws, shall withhold or make such deductions as are determined by it to be required              based upon the information and documentation it has received pursuant to subsection (e)              below, (B) such Loan Party or the Administrative Agent, to the extent required by such              Laws,  shall  timely  pay  the  full  amount  withheld  or  deducted  to  the  relevant                                        58  CHAR1\1593539v8  





 






            Governmental  Authority  in  accordance  with  such  Laws,  and  (C)  to  the  extent  that  the              withholding or deduction is made on account of Indemnified Taxes, the sum payable by              the  applicable  Loan  Party  shall  be  increased  as  necessary  so  that  after  any  required              withholding or the making of all required deductions (including deductions applicable to              additional  sums  payable  under  this  Section  3.01)  the  applicable  Recipient  receives  an              amount equal to the sum it would have received had no such withholding or deduction              been made.               (b)   Payment of Other Taxes by the Loan Parties.  Without limiting the provisions of        subsection (a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in        accordance with applicable Laws, or at the option of the Administrative Agent timely reimburse it        for the payment of, any Other Taxes.               (c)   Tax Indemnifications.  (i) Each of the Loan Parties shall, and does hereby, jointly        and  severally  indemnify  each  Recipient,  and  shall  make  payment  in  respect  thereof  within  ten        (10) days after written demand therefor, for the full amount of any Indemnified Taxes (including        Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section        3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to        such Recipient, and any reasonable expenses arising therefrom or with respect thereto, whether or        not  such  Indemnified  Taxes  were  correctly  or  legally  imposed  or  asserted  by  the  relevant        Governmental Authority.  A certificate as to the amount of such payment or liability delivered to        the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the        Administrative  Agent  on  its  own  behalf  or  on  behalf  of  a  Lender  or  the  L/C  Issuer,  shall  be        conclusive absent manifest error.  Each of the Loan Parties shall, and does hereby, jointly and        severally indemnify the Administrative Agent, and shall make payment in respect thereof within        ten (10) days after written demand therefor, for any amount which a Lender or the L/C Issuer for        any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section        3.01(c)(ii)  below.   Upon  making  such  payment  to  the  Administrative  Agent,  such  Loan  Party        shall be subrogated to the rights of the Administrative Agent pursuant to Sections 3.01(c)(ii)(y)        and 3.01(c)(ii)(z) below against the applicable Lender or the L/C Issuer, other than the right of        set-off pursuant to the last sentence of Section 3.01(c)(ii).                     (ii)  Each  Lender  and  the  L/C  Issuer  shall,  and  does  hereby,  severally              indemnify, and shall make payment in respect thereof within ten (10) days after demand              therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such              Lender  or  the  L/C  Issuer  (but  only  to  the  extent  that  any  Loan  Party  has  not  already              indemnified the Administrative Agent for such Indemnified Taxes and without limiting              the obligation of the Loan Parties to do so), (y) the Administrative Agent and the Loan              Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply              with  the  provisions  of  Section  11.06(d)  relating  to  the  maintenance  of  a  Participant              Register and (z) the Administrative Agent and the Loan Parties, as applicable, against any              Excluded  Taxes  attributable  to  such  Lender  or  the  L/C  Issuer,  in  each  case,  that  are              payable or paid by the Administrative Agent or a Loan Party in connection with any Loan              Document,  and  any  reasonable  expenses  arising  therefrom  or  with  respect  thereto,              whether or not such Taxes were correctly or legally imposed or asserted by the relevant              Governmental  Authority.   A  certificate  as  to  the  amount  of  such  payment  or  liability              delivered to any Lender by the Administrative Agent shall be conclusive absent manifest              error.  Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set              off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as              the case may be, under this Agreement or any other Loan Document against any amount              due to the Administrative Agent under this clause (ii).                                        59  CHAR1\1593539v8  





 






            (d)   Evidence of Payments.  Upon request by any Loan Party or the Administrative        Agent,  as  the  case  may  be,  after  any  payment  of  Taxes  by  such  Loan  Party  or  by  the        Administrative Agent to a Governmental Authority as provided in this Section 3.01, such Loan        Party shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such        Loan  Party,  as  the  case  may  be,  the  original  or  a  certified  copy  of  a  receipt  issued  by  such        Governmental  Authority  evidencing  such  payment,  a  copy  of  any  return  required  by  Laws  to        report  such  payment  or  other  evidence  of  such  payment  reasonably  satisfactory  to  such  Loan        Party or the Administrative Agent, as the case may be.               (e)   Status of Lenders; Tax Documentation.                      (i)   Any  Lender  that  is  entitled  to  an  exemption  from  or  reduction  of              withholding Tax with respect to payments made under any Loan Document shall deliver              to the Borrower and the Administrative Agent, at the time or times reasonably requested              by  the  Borrower  or  the  Administrative  Agent,  such  properly  completed  and  executed              documentation reasonably requested by the Borrower or the Administrative Agent as will              permit  such  payments  to  be  made  without  withholding  or  at  a  reduced  rate  of              withholding.   In  addition,  any  Lender,  if  reasonably  requested  by  the  Borrower  or  the              Administrative  Agent,  shall  deliver  such  other  documentation  prescribed  by  applicable              Law or reasonably requested by the Borrower or the Administrative Agent as will enable              the  Borrower or the  Administrative  Agent  to  determine whether  or not  such  Lender  is              subject to backup withholding or information reporting requirements.  Notwithstanding              anything  to  the  contrary  in the  preceding  two (2)  sentences, the  completion,  execution              and  submission  of  such  documentation  (other  than  such  documentation  set  forth  in              Section 3.01(e)(ii)(A), 3.01(e)(ii)(B) and 3.01(e)(ii)(D) below) shall not be required if in              the  Lender’s  reasonable  judgment  such  completion,  execution  or  submission  would              subject such Lender to any  material unreimbursed cost or expense or would materially              prejudice the legal or commercial position of such Lender.                     (ii)  Without  limiting  the  generality  of  the  foregoing,  in  the  event  that  the              Borrower is a U.S. Person,                           (A)   any  Lender that  is  a  U.S.  Person  shall  deliver  to  the  Borrower                     and  the  Administrative  Agent  on  or  prior  to  the  date  on  which  such  Lender                     becomes a Lender under this Agreement (and from time to time thereafter upon                     the reasonable request of the Borrower or the Administrative Agent), executed                     copies  of  IRS  Form  W-9  certifying  that  such  Lender  is  exempt  from  U.S.                     federal backup withholding tax;                           (B)   any Foreign Lender shall, to the extent it is legally entitled to do                     so, deliver to the Borrower and the Administrative Agent (in such number of                     copies 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:                                 (I)   in the case of a Foreign Lender claiming the benefits of                          an income tax treaty to which the United States is a party (x) with respect                          to  payments  of  interest  under  any  Loan  Document,  executed  copies  of                          IRS  Form  W-8BEN-E  (or  W-8BEN,  as  applicable)  establishing  an                          exemption from, or reduction of, U.S. federal withholding Tax pursuant                                        60  CHAR1\1593539v8  





 






                        to  the  “interest”  article  of  such  tax  treaty  and  (y)  with  respect  to  any                          other  applicable  payments  under  any  Loan  Document,  IRS  Form  W-                         8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or                          reduction  of,  U.S.  federal  withholding  Tax  pursuant  to  the  “business                          profits” or “other income” article of such tax treaty;                                 (II)  executed copies of IRS Form W-8ECI;                                 (III) in the case of a Foreign Lender claiming the benefits of                          the exemption for portfolio interest under Section 881(c) of the Internal                          Revenue Code, (x) a certificate substantially in the form of Exhibit 3.01-                         A  to  the  effect  that  such  Foreign  Lender  is  not  a  “bank”  within  the                          meaning  of  Section  881(c)(3)(A)  of  the  Internal  Revenue  Code,  a  “10                          percent  shareholder”  of  the  Borrower  within  the  meaning  of  Section                          881(c)(3)(B)  of  the  Internal  Revenue  Code,  or  a  “controlled  foreign                          corporation”  described in Section 881(c)(3)(C) of the  Internal  Revenue                          Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of                          IRS Form W-8BEN-E (or W-8BEN, as applicable); or                                 (IV)  to  the  extent  a  Foreign  Lender  is  not  the  beneficial                          owner,  executed  copies  of  IRS  Form  W-8IMY,  accompanied  by  IRS                          Form  W-8ECI,  IRS  Form  W-8BEN-E  (or  W-8BEN,  as  applicable),  a                          U.S.  Tax  Compliance  Certificate  substantially  in  the  form  of  Exhibit                          3.01-B  or  Exhibit  3.01-C,  IRS  Form  W-9,  and/or  other  certification                          documents from each beneficial owner, as applicable; provided that if the                          Foreign  Lender  is  a  partnership  and  one  or  more  direct  or  indirect                          partners  of  such  Foreign  Lender  are  claiming  the  portfolio  interest                          exemption,  such  Foreign  Lender  may  provide  a  U.S.  Tax  Compliance                          Certificate substantially in the form of Exhibit 3.01-D on behalf of each                          such direct and indirect partner;                           (C)   any Foreign Lender shall, to the extent it is legally entitled to do                     so, deliver to the Borrower and the Administrative Agent (in such number of                     copies as shall be requested by the recipient) on or prior to the date on which                     such Foreign Lender becomes a Lender under this Agreement (and from time to                     time  thereafter  upon  the  reasonable  request  of  the  Borrower  or  the                     Administrative Agent), executed copies (or originals, as required) of any other                     form prescribed by applicable Law as a basis for claiming exemption from or a                     reduction in U.S. federal withholding Tax, duly completed, together with such                     supplementary  documentation  as  may  be  prescribed  by  applicable  Law  to                     permit the Borrower or the Administrative Agent to determine the withholding                     or deduction required to be made; and                           (D)   if a payment made to a Lender under any Loan Document would                     be subject to U.S. federal withholding Tax imposed by FATCA if such Lender                     were to fail to comply with the applicable reporting requirements of FATCA                     (including  those  contained  in  Section  1471(b)  or  1472(b)  of  the  Internal                     Revenue Code, as applicable), such Lender shall deliver to the Borrower and                     the Administrative Agent at the time or times prescribed by Law and at such                     time  or  times  reasonably  requested  by  the  Borrower  or  the  Administrative                     Agent  such  documentation  prescribed  by  applicable  Law  (including  as                                        61  CHAR1\1593539v8  





 






                   prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such                     additional  documentation  reasonably  requested  by  the  Borrower  or  the                     Administrative  Agent  as  may  be  necessary  for  the  Borrower  and  the                     Administrative  Agent  to  comply  with  their  obligations  under  FATCA  and  to                     determine that such Lender has complied with such Lender’s obligations under                     FATCA or to determine the amount to deduct and withhold from such payment.                      Solely for purposes of this clause (D), “FATCA” shall include any amendments                     made to FATCA after the Closing Date.                     (iii) Each  Lender  agrees  that  if  any  form  or  certification  it  previously              delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any              respect, it shall update such form or certification or promptly notify the Borrower and the              Administrative Agent in writing of its legal inability to do so.               (f)   Treatment of Certain Refunds.  Unless required by applicable Laws, at no time        shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a        Lender  or  the  L/C  Issuer,  or  have any  obligation  to pay  to  any  Lender  or  the  L/C  Issuer,  any        refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C        Issuer, as the case may be.  If any Recipient determines, in its sole discretion exercised in good        faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan        Party  or  with  respect  to  which  any  Loan  Party  has  paid  additional  amounts  pursuant  to  this        Section 3.01, it shall pay to the Loan Party an amount equal to such refund (but only to the extent        of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01        with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including        Taxes)  incurred  by  such  Recipient,  and  without  interest  (other  than  any  interest  paid  by  the        relevant Governmental Authority with respect to such refund); provided that the Loan Party, upon        the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any        penalties,  interest  or  other  charges  imposed  by  the  relevant  Governmental  Authority)  to  the        Recipient  in  the  event  the  Recipient  is  required  to  repay  such  refund  to  such  Governmental        Authority.   Notwithstanding  anything  to  the  contrary  in  this  subsection,  in  no  event  will  the        applicable Recipient be required to pay any amount to the Loan Party pursuant to this subsection        the payment of which would place the Recipient in a less favorable net after-Tax position than        such Recipient would have been in if the Tax subject to indemnification and giving rise to such        refund had not been deducted, withheld or otherwise imposed and the indemnification payments        or additional amounts with respect to such Tax had never been paid.  This subsection shall not be        construed  to  require  any  Recipient  to  make  available  its  tax  returns  (or  any  other  information        relating to its taxes that it deems confidential) to any Loan Party or any other Person.               (g)   Survival.   Each  party’s  obligations  under  this  Section  3.01  shall  survive  the        resignation  or  replacement  of  the  Administrative  Agent  or  any  assignment  of rights  by,  or  the        replacement  of,  a  Lender  or  the  L/C  Issuer,  the  termination  of  the  Aggregate  Revolving        Commitments and the repayment, satisfaction or discharge of all other Obligations.         3.02  Illegality.         If any Lender determines that any Law has made it unlawful, or that any Governmental Authority  has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations  hereunder  or  to  make,  maintain  or  fund  or  charge  interest  with  respect  to  any  Credit  Extension  or  to  determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has  imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,  Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through                                        62  CHAR1\1593539v8  





 






the  Administrative  Agent,  (i)  any  obligation  of  such  Lender  to  issue,  make,  maintain,  fund  or  charge  interest with respect to any such Credit Extension or continue Eurodollar Rate Loans or to convert Base  Rate Loans to Eurodollar Rate Loans shall be suspended and (ii) if such notice asserts the illegality of  such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference  to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such  Lender, shall, if necessary to avoid such illegality, be determined by the Administrative Agent without  reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the  Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer  exist.  Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy  to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender  to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid  such  illegality,  be  determined  by  the  Administrative  Agent  without  reference  to  the  Eurodollar  Rate  component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may  lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender  may  not  lawfully  continue  to  maintain  such  Eurodollar  Rate  Loans  and  (y)  if  such  notice  asserts  the  illegality  of  such  Lender  determining  or  charging  interest  rates  based  upon  the  Eurodollar  Rate,  the  Administrative  Agent  shall  during  the  period  of  such  suspension  compute  the  Base  Rate  applicable  to  such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is  advised  in  writing  by  such  Lender  that  it  is  no  longer  illegal  for  such  Lender  to  determine  or  charge  interest rates based upon the Eurodollar Rate.  Upon any such prepayment or conversion, the Borrower  shall also pay accrued interest on the amount so prepaid or converted.         3.03  Inability to Determine Rates.               (a)   If in connection with any request for a Eurodollar Rate Loan or a conversion to        or continuation thereof, (i) the Administrative Agent determines that (A) Dollar deposits are not        being offered to banks in the London interbank eurodollar market for the applicable amount and        Interest Period of such Eurodollar Rate Loan, or (B) adequate and reasonable means do not exist        for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed        Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case        with respect to clause (i), “Impacted Loans”), or (ii) the Administrative Agent or the Required        Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with        respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such        Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify        the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain        Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or        Interest Periods), and (y) in the event of a determination described in the preceding sentence with        respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate        component in determining the Base Rate shall be suspended, in each case until the Administrative        Agent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such        notice,  the  Borrower  may  revoke  any  pending  request  for  a  Borrowing  of,  conversion  to  or        continuation  of  Eurodollar  Rate  Loans  (to  the  extent  of  the  affected  Eurodollar  Rate  Loans  or        Interest Periods) or, failing that, will be deemed to have converted such request into a request for        a Borrowing of Base Rate Loans in the amount specified therein.               (b)   Notwithstanding  the  foregoing,  if  the  Administrative  Agent  has  made  the        determination described in clause (a)(i) of this Section, the Administrative Agent, in consultation        with  the  Borrower  and  the  affected  Lenders,  may  establish  an  alternative  interest  rate  for  the        Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the        Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to        the  Impacted  Loans  under  clause  (a)(i)  of  this  Section,  (2)  the  Administrative  Agent  or  the                                        63  CHAR1\1593539v8  





 






      Required Lenders notify the Administrative Agent and the Borrower that such alternative interest        rate  does  not  adequately  and  fairly  reflect  the  cost  to  such  Lenders  of  funding  the  Impacted        Loans,  or  (3)  any  Lender  determines  that  any  Law  has  made  it  unlawful,  or  that  any        Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending        Office  to  make,  maintain  or  fund  Loans  whose  interest  is  determined  by  reference  to  such        alternative rate of interest or to determine or charge interest rates based upon such rate or any        Governmental Authority has imposed material restrictions on the authority of such Lender to do        any  of  the  foregoing  and  provides  the  Administrative  Agent  and  the  Borrower  written  notice        thereof.         3.04  Increased Costs; Reserves on Eurodollar Rate Loans.               (a)   Increased Costs Generally.  If any Change in Law shall:                     (i)   impose,  modify  or  deem  applicable  any  reserve,  special  deposit,              compulsory loan, insurance charge or similar requirement against assets of, deposits with              or for the account of, or credit extended or participated in by, any Lender (except any              reserve requirement contemplated by Section 3.04(e)) or the L/C Issuer;                     (ii)  subject any Recipient to any Taxes (other than (A) Indemnified Taxes,              (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and              (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,              or  other  obligations,  or  its  deposits,  reserves,  other  liabilities  or  capital  attributable              thereto; or                     (iii) impose on any Lender or the L/C Issuer or the London interbank market              any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans              made by such Lender or any Letter of Credit or participation therein;   and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting  to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to  increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of  Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the  amount  of  any  sum  received  or  receivable  by  such  Lender  or  the  L/C  Issuer  hereunder  (whether  of  principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower  will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will  compensate  such  Lender  or  the  L/C  Issuer,  as  the  case  may  be,  for  such  additional  costs  incurred  or  reduction suffered.               (b)   Capital  Requirements.   If  any  Lender  or  the  L/C  Issuer  determines  that  any        Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or        such  Lender’s  or  the  L/C  Issuer’s  holding  company,  if  any,  regarding  capital  or  liquidity        requirements has or would have the effect of reducing the rate of return on such Lender’s or the        L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if        any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made        by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters        of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or        such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in        Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such        Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time        to  time  the  Borrower  will  pay  to  such  Lender  or  the  L/C  Issuer,  as  the  case  may  be,  such                                         64  CHAR1\1593539v8  





 






      additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s        or the L/C Issuer’s holding company for any such reduction suffered.               (c)   Certificates  for  Reimbursement.   A  certificate  of  a  Lender  or  the  L/C  Issuer        setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its        holding company, as the case may be, as specified in subsection (a) or (b) of this Section and        delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such        Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate        within ten (10) days after receipt thereof.               (d)   Delay in Requests.  Failure or delay on the part of any Lender or the L/C Issuer        to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a        waiver of such Lender’s or the L/C Issuer’s right to demand such compensation; provided that the        Borrower  shall  not  be  required  to  compensate  a  Lender  or  the  L/C  Issuer  pursuant  to  the        foregoing provisions of this Section for any increased costs incurred or reductions suffered more        than 180 days prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the        Borrower  of  the  Change  in  Law  giving  rise  to  such  increased  costs  or  reductions  and  of  such        Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change        in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period        referred to above shall be extended to include the period of retroactive effect thereof).               (e)   Reserves on Eurodollar Rate Loans.  The Borrower shall pay to each Lender, as        long  as  such  Lender  shall  be  required  to  maintain  reserves  with  respect  to  liabilities  or  assets        consisting  of  or  including  eurocurrency  funds  or  deposits  (currently  known  as  “Eurocurrency        liabilities”),  additional  interest  on  the  unpaid  principal  amount  of  each  Eurodollar  Rate  Loan        equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined        by such Lender in good faith, which determination shall be conclusive), which shall be due and        payable  on  each  date  on  which  interest  is  payable  on  such  Loan;  provided  the  Borrower  shall        have received at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of        such additional interest or costs from such Lender.  If a Lender fails to give notice ten (10) days        prior to the relevant Interest Payment Date, such additional interest shall be due and payable ten        (10) days from receipt of such notice.         3.05  Compensation for Losses.         Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the  Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost  or expense incurred by it as a result of:               (a)   any  continuation,  conversion,  payment  or  prepayment  of  any  Eurodollar  Rate        Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,        mandatory, automatic, by reason of acceleration, or otherwise);               (b)   any failure by the Borrower (for a reason other than the failure of such Lender to        make a Loan) to prepay, borrow, continue or convert any Eurodollar Rate Loan on the date or in        the amount notified by the Borrower;                (c)   any  failure  by  the  Borrower  to  reimburse  a  drawing  under  a  Letter  of  Credit        denominated in an Alternative Currency on its scheduled due date or any payment thereof in a        different currency;                                         65  CHAR1\1593539v8  





 






            (d)   any assignment of a Eurodollar Rate Loan on a day other than the last day of the        Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;         including any loss of anticipated profits and any loss or expense arising from the liquidation or  reemployment  of  funds  obtained  by  it  to  maintain  such  Loan  or  from  fees  payable  to  terminate  the  deposits  from  which  such  funds  were  obtained.   The  Borrower  shall  also  pay  any  customary  administrative fees charged by such Lender in connection with the foregoing.         For purposes of calculating amounts payable by the Borrower to the Lenders under this Section  3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar  Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in  the London interbank eurodollar market for a comparable amount and for a comparable period, whether  or not such Eurodollar Rate Loan was in fact so funded.         3.06  Mitigation Obligations; Replacement of Lenders.               (a)   Designation of a Different Lending Office.  If any Lender requests compensation        under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts        to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or        the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02,        then  at  the  request  of  the  Borrower  such  Lender  or  the  L/C  Issuer,  as  applicable,  shall  use        reasonable  efforts  to  designate  a  different  Lending  Office  for  funding  or  booking  its  Loans        hereunder or to assign its rights and obligations hereunder to another of its offices, branches or        affiliates, if, in the judgment of such Lender or the L/C Issuer, as applicable, such designation or        assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the        case  may  be,  in  the  future,  or  eliminate  the  need  for  the  notice  pursuant  to  Section  3.02,  as        applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may        be, to  any  unreimbursed  cost  or  expense  and  would  not otherwise  be disadvantageous  to  such        Lender or the L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable        costs  and  expenses  incurred  by  any  Lender  or  the  L/C  Issuer  in  connection  with  any  such        designation or assignment.               (b)   Replacement  of  Lenders.   If  any  Lender  requests  compensation  under  Section        3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any        Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01        and, in each case, such Lender has declined or is unable to designate a different lending office in        accordance  with  Section  3.06(a),  the  Borrower  may  replace  such  Lender  in  accordance  with        Section 11.13.         3.07  Successor LIBOR.         Notwithstanding  anything  to  the  contrary  in  this  Agreement  or  any  other  Loan  Documents  (including Section 11.01 hereof), if the Administrative Agent determines (which determination shall be  conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent  (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or Required Lenders (as  applicable) have determined, that:               (i)   adequate  and  reasonable  means  do  not  exist  for  ascertaining  LIBOR  for  any        requested  Interest  Period  because  the  LIBOR  Screen  Rate  is  not  available  or  published  on  a        current basis and such circumstances are unlikely to be temporary; or                                          66  CHAR1\1593539v8  





 






            (ii)   the  administrator  of  the  LIBOR  Screen  Rate  or  a  Governmental  Authority        having  jurisdiction  over  the  Administrative  Agent  has  made  a  public  statement  identifying  a        specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or        used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability        Date”), or               (iii)  syndicated loans currently being executed, or that include language similar to that        contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a        new benchmark interest rate to replace LIBOR,          then, reasonably promptly after such determination by the Administrative Agent or receipt by the  Administrative  Agent  of  such  notice,  as  applicable,  the  Administrative  Agent  and  the  Borrower  may  amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical  or  other  adjustments  to  the  benchmark  (if  any)  incorporated  therein),  giving  due  consideration  to  any  evolving or then existing convention for similar Dollar denominated syndicated credit facilities for such  alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed  LIBOR Successor Rate Conforming Changes (as defined below) and any such amendment shall become  effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall  have  posted  such  proposed  amendment  to  all  Lenders  and  the  Borrower  unless,  prior  to  such  time,  Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that  such Required Lenders do not accept such amendment.           If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above  exist  or the  Scheduled  Unavailability  Date  has occurred (as applicable),  the  Administrative  Agent  will  promptly so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make  or  maintain  Eurodollar  Rate  Loans  shall  be  suspended,  (to  the  extent  of  the  affected  Eurodollar  Rate  Loans  or  Interest  Periods),  and  (y)  the  Eurodollar  Rate  component  shall  no  longer  be  utilized  in  determining the Base Rate.  Upon receipt of such notice, the Borrower may revoke any pending request  for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected  Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request  into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount  specified therein.         Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that  in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.         3.08  Survival.         All  of  the  Loan  Parties’  obligations  under  this  Article  III  shall  survive  termination  of  the  Aggregate  Revolving  Commitments,  repayment  of  all  other  Obligations  hereunder,  resignation  of  the  Administrative Agent and the Facility Termination Date.                                    ARTICLE IV.                  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS         4.01  Conditions of Initial Credit Extension.         This  Agreement  shall  become  effective  upon,  and  the  obligation  of  the  L/C  Issuer  and  each  Lender  to  make  its  initial  Credit  Extension  hereunder  is  subject  to,  the  satisfaction  of  the  following  conditions precedent:                                         67  CHAR1\1593539v8  





 






            (a)   Receipt  by  the  Administrative  Agent  of  the  following,  each  in  form  and        substance satisfactory to the Administrative Agent and each Lender:                     (i)   Loan  Documents.   Executed  counterparts  of  this  Agreement  and  the              other Loan Documents, each properly executed by a Responsible Officer of the signing              Loan Party and, in the case of this Agreement, by each Lender.                     (ii)  Opinions of Counsel.  Favorable opinions of legal counsel to the Loan              Parties, addressed to the Administrative Agent and each Lender, dated as of the Closing              Date.                     (iii) Organization Documents, Resolutions, Etc.                           (A)   copies  of  the  Organization  Documents  of  each  Loan  Party                     certified  to  be  true  and  complete  as  of  a  recent  date  by  the  appropriate                     Governmental Authority of the state or other jurisdiction of its incorporation or                     organization,  where  applicable,  and  certified  by  a  secretary  or  assistant                     secretary of such Loan Party to be true and correct as of the Closing Date;                           (B)   such  certificates  of  resolutions  or  other  action,  incumbency                     certificates and/or other certificates of Responsible Officers of each Loan Party                     as the Administrative Agent may require evidencing the identity, authority and                     capacity of each Responsible Officer thereof authorized to act as a Responsible                     Officer  in connection  with  this Agreement  and  the  other Loan  Documents  to                     which such Loan Party is a party; and                           (C)   such  documents  and  certifications  as  the  Administrative  Agent                     may reasonably require to evidence that each Loan Party is duly organized or                     formed,  and  is  validly  existing,  in  good  standing  and  qualified  to  engage  in                     business in its state of organization or formation.                     (iv)  Personal Property Collateral.                           (A)   UCC financing statements for each appropriate jurisdiction as is                     necessary,  in  the  Administrative  Agent’s  discretion,  to  perfect  the                     Administrative Agent’s security interest in the Collateral;                           (B)   all  certificates  evidencing  any  certificated  Equity  Interests                     pledged  to  the  Administrative  Agent  pursuant  to  the  Security  Agreement,                     together  with  duly  executed  in  blank,  undated  stock  powers  attached  thereto                     (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary,                     such stock powers are deemed unnecessary by the Administrative Agent in its                     reasonable discretion under the Law of the jurisdiction of organization of such                     Person); and                           (C)   duly  executed  notices  of  grant  of  security  interest  in  the  form                     required  by  the  Security  Agreement  as  are  necessary,  in  the  Administrative                     Agent’s sole discretion, to perfect the Administrative Agent’s security interest                     in the United States registered intellectual property of the Loan Parties.                     (v)   KYC Information.                                             68  CHAR1\1593539v8  





 






                        (A)   Upon the reasonable request of any Lender made at least ten (10)                     days  prior  to  the  Closing  Date,  the  Borrower  shall  have  provided  to  such                     Lender  the  documentation  and  other  information  so  requested  in  connection                     with  applicable  “know  your  customer”  and  anti-money-laundering  rules  and                     regulations,  including  the  PATRIOT  Act,  in  each  case  at  least  five  (5)  days                     prior to the Closing Date.                             (B)   At least five (5) days prior to the Closing Date, the Borrower that                     qualifies  as  a  “legal  entity  customer”  under  the  Beneficial  Ownership                     Regulation shall deliver a Beneficial Ownership Certification in relation to the                     Borrower.                     (vi)  Evidence  of  Insurance.   Copies  of  insurance  policies  or  certificates  of              insurance  of  the  Loan  Parties  evidencing  liability  and  casualty  insurance  meeting  the              requirements  set  forth  in  the  Loan  Documents,  including  naming  the  Administrative              Agent  and  its  successors  and  assigns  as  additional  insured  (in  the  case  of  liability              insurance) or loss payee (in the case of property insurance) on behalf of the Lenders.                     (vii) Closing Certificate.  A certificate signed by a Responsible Officer of the              Borrower  certifying  that  the  conditions  specified  in  Sections  4.02(a)  and  4.02(b)  have              been satisfied.               (b)   Existing Indebtedness of the Loan Parties.  The Existing Credit Agreement and        any other existing indebtedness for borrowed money of the Borrower and its Subsidiaries (other        than  Indebtedness  permitted  to  exist  pursuant  to  Section  7.03)  shall  be  repaid  in  full  and  all        security interests related thereto shall be terminated on or prior to the Closing Date.               (c)   Fees.  Receipt by the Administrative Agent, MLPFS and the Lenders of any fees        required to be paid on or before the Closing Date.               (d)   Attorney  Costs.   The  Borrower  shall  have  paid  all  fees,  charges  and        disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the        Administrative Agent) to the extent invoiced at least two (2) Business Days prior to the Closing        Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its        reasonable  estimate  of  such  fees,  charges  and  disbursements  incurred  or  to  be  incurred  by  it        through the closing proceedings (provided that such estimate shall not thereafter preclude a final        settling of accounts between the Borrower and the Administrative Agent).         Without  limiting  the  generality  of  the  provisions  of  the  last  paragraph  of  Section  9.03,  for  purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that  has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied  with, each document or other matter required thereunder to be consented to or approved by or acceptable  or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender  prior to the proposed Closing Date specifying its objection thereto.         4.02  Conditions to all Credit Extensions.         The  obligation  of  each  Lender  and  the  L/C  Issuer  to  honor  any  Request  for  Credit  Extension  (other than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of  Eurodollar Rate Loans) is subject to the following conditions precedent:                                         69  CHAR1\1593539v8  





 






            (a)   The  representations  and  warranties  of  each  Loan  Party  contained  in  this        Agreement or any other Loan Document, or which are contained in any document furnished at        any time under or in connection herewith or therewith, shall be true and correct in all material        respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the        date  of  such  Credit  Extension,  except  to  the  extent  that  such  representations  and  warranties        specifically  refer  to  a  certain  date, in  which  case  they  shall  be  true  and  correct  in  all  material        respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such date.               (b)   No Default shall exist, or would result from such proposed Credit Extension or        from the application of the proceeds thereof.               (c)   The  Administrative  Agent  and,  if  applicable,  the  L/C  Issuer  or  the  Swingline        Lender shall have received a Request for Credit Extension in accordance with the requirements        hereof.               (d)   In the case of a Letter of Credit to be denominated in an Alternative Currency,        such currency remains an Eligible Currency.         Each  Request  for  Credit  Extension  (other  than  a  Loan  Notice  requesting  only  a  conversion  of  Loans to the other Type, or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be  deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have  been satisfied on and as of the date of the applicable Credit Extension.                                    ARTICLE V.                        REPRESENTATIONS AND WARRANTIES         The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:         5.01  Existence, Qualification and Power.         Each  Loan  Party  and  each  direct  Subsidiary  of  a  Loan  Party  (a)  is  duly  organized  or  formed,  validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation  or  organization,  (b)  has  all  requisite  power  and  authority  and  all  requisite  governmental  licenses,  authorizations,  consents  and  approvals  to  (i)  own  or  lease  its  assets  and  carry  on  its  business  and  (ii)  execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is  duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction  where  its  ownership,  lease  or  operation  of  properties  or  the  conduct  of  its  business  requires  such  qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to  do so could not reasonably be expected to have a Material Adverse Effect.         5.02  Authorization; No Contravention.         The execution, delivery and performance by each Loan Party of each Loan Document to which  such Person is party have been duly authorized by all necessary corporate or other organizational action,  and do not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or  result in any breach or contravention of, or the creation of any Lien under, or require any payment to be  made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the  properties of such Person or any of its Subsidiaries or  (ii) any order, injunction, writ or decree of any  Governmental  Authority  or  any  arbitral  award  to  which  such  Person  or  its  property  is  subject;  or  (c)                                         70  CHAR1\1593539v8  





 






violate any Law; except in each case referred to in clause (b) or (c), to the extent that failure to do so  could not reasonably be expected to have a Material Adverse Effect.         5.03  Governmental Authorization; Other Consents.         No approval, consent, exemption, authorization, or other action by, or notice to, or filing with,  any  Governmental  Authority  or  any  other  Person  is  necessary  or  required  in  connection  with  the  execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any  other Loan Document other than (a) those that have already been obtained and are in full force and effect,  (b)  filings  to  perfect  the  Liens  created  by  the  Collateral  Documents  and  (c)  required  filings  under  the  Securities Exchange Act of 1934.         5.04  Binding Effect.         Each  Loan  Document  has  been  duly  executed  and  delivered  by  each  Loan  Party  that  is  party  thereto.  Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is  party  thereto,  enforceable  against  each  such  Loan  Party  in  accordance  with  its  terms,  except  as  such  enforceability may be limited by Debtor Relief Laws, by general principles of equity or principles of good  faith and fair dealing.         5.05  Financial Statements; No Material Adverse Effect.               (a)   The  financial  statements  delivered  pursuant  to  Sections  6.01(a)  and  6.01(b)  (i)        were  prepared  in  accordance  with  GAAP  consistently  applied  throughout  the  period  covered        thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of        the  Borrower  and  its  Subsidiaries  as  of  the  date  thereof  and  their  results  of  operations  for  the        period  covered  thereby  in  accordance  with  GAAP  consistently  applied  throughout  the  period        covered thereby, except as otherwise expressly noted therein (subject, in the case of unaudited        financial statements, to the absence of footnotes and to normal year-end audit adjustments); and        (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and        its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and        Indebtedness.               (b)   The  Audited  Financial  Statements  and  the  unaudited  consolidated  and        consolidating  financial  statements  of  the  Borrower  and  its  Subsidiaries  for  the  fiscal  quarter        ending  March  31,  2018  (i)  were  prepared  in  accordance  with  GAAP  consistently  applied        throughout  the  period  covered  thereby,  except  as  otherwise  expressly  noted  therein;  (ii)  fairly        present in all material respects the financial condition of the Borrower and its Subsidiaries as of        the date thereof and their results of operations for the period covered thereby (subject, in the case        of  unaudited  financial  statements,  to  the  absence  of  footnotes  and  to  normal  year-end  audit        adjustments); and (iii) show all material indebtedness and other liabilities, direct or contingent, of        the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material        commitments and Indebtedness.               (c)   [reserved].               (d)   Since the date of the Audited Financial Statements, there has been no event or        circumstance, either individually or in the aggregate, that has had or could reasonably be expected        to have a Material Adverse Effect.         5.06  Litigation.                                         71  CHAR1\1593539v8  





 






      There are no actions, suits, proceedings, claims or disputes pending or, to the actual knowledge of  the Responsible Officers of the Loan Parties, threatened in writing or contemplated, at law, in equity, in  arbitration  or  before  any  Governmental  Authority,  by  or  against  any  Loan  Party  or  any  Subsidiary  or  against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any  other Loan Document, or any of the transactions contemplated hereby or (b) either individually or in the  aggregate could reasonably be expected to have a Material Adverse Effect.         5.07  No Default.               (a)   No  Loan  Party  nor  any  Subsidiary  is  in  default  under  or  with  respect  to  any        Contractual Obligation that individually or in the aggregate could reasonably be expected to have        a Material Adverse Effect.               (b)   No Default has occurred and is continuing.         5.08  Ownership of Property.         Each Loan Party has good record and marketable title in fee simple to, or valid leasehold interests  in, all real property necessary or used in the ordinary conduct of its business, except for such defects in  title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse  Effect.         5.09  Environmental Compliance.               (a)   The  Loan  Parties  and  their  Subsidiaries  conduct  in  the  ordinary  course  of        business  a  review  of  the  effect  of  existing  Environmental  Laws  and  claims  alleging  potential        liability or responsibility for violation of any Environmental Law on their respective businesses,        operations and properties, and as a result thereof the Loan Parties have reasonably concluded that        such Environmental Laws and claims could not, individually or in the aggregate, reasonably be        expected to have a Material Adverse Effect.               (b)   None  of  the  properties  currently  or  formerly  owned  or  operated  by  any  Loan        Party  or  any  Subsidiary  is  listed  or  proposed  for  listing  on  the  National  Priorities  List  under        CERCLA or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any        such property; except with respect to a diesel fuel tank for an electric generator at the Borrower’s        headquarters, there are no and never have been any underground or above-ground storage tanks        or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials        are being or have been treated, stored or disposed on any property currently owned or operated by        any Loan Party or any Subsidiary or, to the actual knowledge of the Responsible Officers of the        Loan Parties, on any property formerly owned or operated by any Loan Party or any Subsidiary;        there is no asbestos or asbestos-containing material on any property currently owned or operated        by  any  Loan  Party  or  any  Subsidiary;  and  Hazardous  Materials  have  not  been  released,        discharged or disposed of on any property currently or formerly owned or operated by any Loan        Party or any Subsidiary.               (c)   No Loan Party nor any Subsidiary is undertaking, and has not completed, either        individually or together with other potentially responsible parties, any investigation or assessment        or remedial or response action relating to any actual or threatened release, discharge or disposal        of  Hazardous  Materials  at  any  site,  location  or  operation,  either  voluntarily  or  pursuant  to  the        order  of  any  Governmental  Authority  or  the  requirements  of  any  Environmental  Law;  and  all        Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any                                         72  CHAR1\1593539v8  





 






      property currently or formerly owned or operated by any Loan Party or any Subsidiary have been        disposed of in a manner not reasonably expected to have a Material Adverse Effect.         5.10  Insurance.         The properties of the Loan Parties and their Subsidiaries are insured with financially sound and  reputable insurance companies not Affiliates of the Borrower (other than with respect to WAHI or other  captive  insurance  company),  in  such  amounts,  with  such  deductibles  and  covering  such  risks  as  are  customarily  carried  by  companies  engaged  in  similar  businesses  and  owning  similar  properties  in  localities  where  the  applicable  Loan  Party  or  the  applicable  Subsidiary  operates.   The  property  and  general liability insurance coverage of the Loan Parties as in effect on the Closing Date is outlined as to  carrier, policy number, expiration date, type, amount and deductibles on Schedule 5.10.         5.11  Taxes.         Each Loan Party and its Subsidiaries have filed all tax returns and reports required to be filed, and  have  paid  all  federal  taxes,  assessments,  fees  and  other  governmental  charges  levied  or imposed  upon  them or their properties, income or assets otherwise due and payable, except (i) those which are being  contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves  have been provided in accordance with GAAP or (ii) where the failure to do so could not reasonably be  expected to have a Material Adverse Effect.  There is no proposed tax assessment against any Loan Party  or any Subsidiary that would, if made, have a Material Adverse Effect.  No Loan Party nor any Subsidiary  is party to any tax sharing agreement.         5.12  ERISA Compliance.               (a)   Except as would not, either in the individual or in the aggregate, reasonably be        expected to result in a Material Adverse Effect, each Plan is in compliance in all material respects        with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state        Laws.  The Loan Parties do not sponsor, participate in or contribute to a Pension Plan.               (b)   There are no pending or, to the actual knowledge of the Responsible Officers of        the Loan Parties, threatened in writing claims, actions or lawsuits, or action by any Governmental        Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse        Effect.  There has been no prohibited transaction or violation of the fiduciary responsibility rules        with respect to any Plan that has resulted or could reasonably be expected to result in a Material        Adverse Effect.               (c)   Except as would not, either in the individual or in the aggregate, reasonably be        expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred, and no Loan        Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably        be  expected  to  constitute  or  result  in  an  ERISA  Event  with  respect  to  any  Pension  Plan  or        Multiemployer Plan; (ii) no Loan Party nor any ERISA Affiliate has incurred any liability to the        PBGC; and (iii) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be        subject to Section 4069 or Section 4212(c) of ERISA.               (d)   The Borrower represents and warrants as of the Closing Date that the Borrower is        not and will not be using “plan assets” (within the meaning of 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.                                         73  CHAR1\1593539v8  





 






      5.13  Subsidiaries.         Set  forth  on  Schedule  5.13  is  a  complete  and  accurate  list  as  of  the  Closing  Date  of  each  Subsidiary of any Loan Party, together with, in the case of the Loan Parties and each Subsidiary directly  owned by a Loan Party whose Equity Interests constitute Collateral, (i) jurisdiction of organization, (ii) to  the extent applicable, number of shares of each class of Equity Interests outstanding, (iii) to the extent  applicable, number and percentage of outstanding shares of each class owned (directly or indirectly) by  any  Loan  Party  or  any  Subsidiary  and  (iv)  an  indication  as  to  whether  such  Subsidiary  is  a  Material  Domestic Subsidiary.  The outstanding Equity Interests of each Subsidiary of any Loan Party are validly  issued, fully paid and non-assessable.         5.14  Margin Regulations; Investment Company Act.               (a)   The  Borrower  is  not  engaged  and  will  not  engage,  principally  or  as  one  of  its        important activities, in the business of purchasing or carrying margin stock (within the meaning        of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying        margin  stock.   Following  the  application of the  proceeds  of each Borrowing or drawing  under        each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or        of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section        7.01  or  Section  7.05  or  subject  to  any  restriction  contained  in  any  agreement  or  instrument        between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and        within the scope of Section 8.01(e) will be margin stock.               (b)   None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is        or is required to be registered as an “investment company” under the Investment Company Act of        1940.         5.15  Disclosure.         No report, financial statement, certificate or other information furnished (whether in writing or  orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with  the  transactions  contemplated  hereby  and  the  negotiation  of  this  Agreement  or  delivered  hereunder  or  under  any  other  Loan  Document  (in  each  case,  as  modified  or  supplemented  by  other  information  so  furnished) contains any material misstatement of fact or omits to state any material fact necessary to make  the  statements  therein,  in  the  light  of  the  circumstances  under  which  they  were  made,  not  materially  misleading; provided that, with respect to projected financial information and information of a general  economic or industry nature, the Loan Parties represent only that such information was prepared in good  faith based upon assumptions believed to be reasonable at the time (it being understood and agreed that  financial  projections  are  not  a  guarantee  or  financial  performance  and  actual  results  may  differ  from  financial projections and such differences may be material).         5.16  Compliance with Laws.         Each  Loan  Party  and  Subsidiary  is  in  compliance  with  the  requirements  of  all  Laws  and  all  orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which  (a)  such  requirement  of  Law  or  order,  writ,  injunction  or  decree  is  being  contested  in  good  faith  by  appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably  be expected to have a Material Adverse Effect.         5.17  Intellectual Property; Licenses, Etc.                                         74  CHAR1\1593539v8  





 






      Each Loan Party owns, or possesses the right to use, all of the trademarks, service marks, trade  names, copyrights, patents, patent rights, licenses and other intellectual property rights (collectively, “IP  Rights”)  that  are  reasonably  necessary  for  the  operation  of  their  respective  businesses.   Set  forth  on  Schedule  5.17  is  a  list  of  (i)  all  IP  Rights  registered  or  pending  registration  with  the  United  States  Copyright Office or the United States Patent and Trademark Office that, as of the Closing Date, a Loan  Party  owns and (ii) all licenses  of  IP  Rights  registered  with the  United  States Copyright  Office or the  United  States  Patent  and  Trademark  Office  as  of  the  Closing  Date.   Except  for  such  claims  and  infringements that could not reasonably be expected to have a Material Adverse Effect, no claim has been  asserted and is pending by any Person challenging or questioning the use of any IP Rights or the validity  or effectiveness of any IP Rights, nor does any Loan Party know of any such claim, and, to the actual  knowledge of the Responsible Officers of the Loan Parties, the use of any IP Rights by any Loan Party or  any Subsidiary or the granting of a right or a license in respect of any IP Rights from any Loan Party or  any Subsidiary does not infringe on the rights of any Person.  As of the Closing Date, none of the IP  Rights owned by any Loan Party is subject to any licensing agreement or similar arrangement except as  set forth on Schedule 5.17.         5.18  Solvency.         The Borrower is Solvent, and the Loan Parties are Solvent on a consolidated basis.         5.19  Perfection of Security Interests in the Collateral.         The Collateral Documents create valid security interests in, and Liens on, the Collateral purported  to  be  covered  thereby,  which  security  interests  and  Liens are, subject to the proper filing  of  financing  statements  and  other  documents  and  deliverables  necessary  for  perfection,  currently  perfected  security  interests and Liens, prior to all other Liens other than Permitted Liens.         5.20  Business Locations; Taxpayer Identification Number.         Set  forth  on  Schedule  5.20(a)  is  a  list  of  all  real  property  located  in  the  United  States  that  is  owned or leased by any Loan Party as of the Closing Date (other than any immaterial leased properties  with early termination clauses).  Set forth on Schedule 5.20(b) is the jurisdiction of organization, chief  executive office, exact legal name, U.S. tax payer identification number and organizational identification  number of each Loan Party as of the Closing Date.  Except as set forth on Schedule 5.20(c), no Loan  Party has during the five (5) years preceding the Closing Date (i) changed its legal name, (ii) changed its  state of formation or (iii) been party to a merger, consolidation or other change in structure.  Set forth on  Schedule 5.20(d) is a list of each deposit and investment account of each Loan Party as of the Closing  Date.           5.21  OFAC.          None of the Loan Parties, nor any of their Subsidiaries, nor, to the knowledge of the Loan Parties  and  their  Subsidiaries,  any  director,  officer,  employee,  agent,  affiliate  or  representative  thereof,  is  an  individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the  subject  or  target  of  any  Sanctions,  (ii)  included  on  OFAC’s  List  of  Specially  Designated  Nationals,  HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list  enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated  Jurisdiction.         5.22  Anti-Corruption Laws.                                             75  CHAR1\1593539v8  





 






      The Loan Parties and their Subsidiaries have conducted their businesses in compliance with the  United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti- corruption legislation  in other jurisdictions  and  have instituted  and  maintained policies and  procedures  designed to promote and achieve compliance with such laws.         5.23  No EEA Financial Institution.         No Loan Party is an EEA Financial Institution.         5.24  Beneficial Ownership Certification.         As of the Closing Date, the information included in the Beneficial Ownership Certification is true  and correct in all respects.                                    ARTICLE VI.                             AFFIRMATIVE COVENANTS         Until the Facility Termination Date, each Loan Party shall and shall cause each Subsidiary to:         6.01  Financial Statements.         Deliver  to  the  Administrative  Agent  (for  distribution  to  the  Lenders),  in  form  and  detail  reasonably satisfactory to the Administrative Agent:               (a)   as  soon as available, but in  any event  within  ninety (90) days  after  the  end  of        each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2018, a        consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year,        and the related consolidated statements of income or operations, changes in shareholders’ equity        and cash flows for such fiscal year, setting forth in each case in comparative form the figures for        the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited        and  accompanied  by  a  report  and  opinion  of  an  independent  certified  public  accountant  of        nationally recognized standing reasonably acceptable to the Administrative Agent, which report        and opinion shall be prepared in accordance with generally accepted auditing standards and shall        not be subject to any “going concern” or like qualification or exception or any qualification or        exception  as  to  the  scope  of  such  audit  (other  than  qualifications  solely  resulting  from  the        impending maturity of the Obligations within the next twelve (12) months); and               (b)   as soon as available, but in any event within forty-five (45) days after the end of        each of the first three (3) fiscal quarters of each fiscal year of the Borrower, commencing with the        fiscal  quarter  ending  June  30,  2018,  a  consolidated  balance  sheet  of  the  Borrower  and  its        Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or        operations for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, and        the related consolidated and consolidating statements of changes in shareholders’ equity and cash        flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, in each        case  setting  forth  in  comparative  form,  as  applicable,  the  figures  for  the  corresponding  fiscal        quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in        reasonable detail and certified by the chief executive officer, chief financial officer, treasurer or        controller  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.                                         76  CHAR1\1593539v8  





 






As to any information contained in materials furnished pursuant to Section 6.02(d), the Borrower shall not  be  separately  required  to  furnish  such  information  under  Section  6.01(a)  or  6.01(b),  but  the  foregoing  shall  not  be  in  derogation  of  the  obligation  of  the  Borrower  to  furnish  the  information  and  materials  described in Section 6.01(a) or 6.01(b) at the times specified therein.         6.02  Certificates; Other Information.         Deliver  to  the  Administrative  Agent  (for  distribution  to  the  Lenders),  in  form  and  detail  reasonably satisfactory to the Administrative Agent:               (a)   [reserved];               (b)   concurrently with the delivery of the financial statements referred to in Sections        6.01(a)  and  6.01(b),  a  duly  completed  Compliance  Certificate  signed  by  the  chief  executive        officer, chief financial officer, treasurer or controller of the Borrower which shall include such        supplements to Schedules 5.13, 5.17, 5.20(a), 5.20(b), 5.20(c) and 5.20(d), as are necessary such        that, as supplemented, such Schedules would be accurate and complete in all material respects as        of the date of such Compliance Certificate (which delivery may, unless the Administrative Agent,        or a Lender requests executed originals, be by electronic communication including fax or email        and shall be deemed to be an original authentic counterpart thereof for all purposes);               (c)   not  later  than  sixty  (60)  days  after  the  beginning  of  each  fiscal  year  of  the        Borrower, commencing with the fiscal year beginning January 1, 2019, an annual business plan        and  budget  of  the  Borrower  and  its  Subsidiaries  containing,  among  other  things,  company-       prepared pro forma financial statements for each quarter of such fiscal year;               (d)   promptly  after  the  same  are  available,  copies  of  each  annual  report,  proxy  or        financial statement or other report or communication sent to the equityholders of any Loan Party        or any Subsidiary, and copies of all annual, regular, periodic and special reports and registration        statements which a Loan Party or any Subsidiary may file or be required to file with the SEC        under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to        be delivered to the Administrative Agent pursuant hereto;               (e)   promptly after any request by the Administrative Agent or any Lender, copies of        any  detailed  audit  reports,  material  management  letters  or  recommendations  submitted  to  the        board  of  directors  (or  the  audit  committee  of  the  board  of  directors)  of  the  Borrower  by        independent  accountants  in  connection  with  the  accounts  or  books  of  the  Borrower  or  any        Subsidiary, or any audit of any of them;               (f)   promptly after the furnishing thereof, copies of any material statement or report        furnished to any holder of debt securities of any Loan Party or any Subsidiary pursuant to the        terms  of  any  indenture,  loan  or  credit  or  similar  agreement  and  not  otherwise  required  to  be        furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;               (g)   promptly, and in any event within five (5) Business Days after receipt thereof by        any Loan Party or any Subsidiary, copies of each notice or other correspondence received from        the  SEC  (or  comparable  agency  in  any  applicable  non-U.S.  jurisdiction)  concerning  any        investigation  or  possible  investigation  or  other  inquiry  by  such  agency  regarding  financial  or        other operational results of any Loan Party or any Subsidiary; and                                          77  CHAR1\1593539v8  





 






            (h)   promptly,  such  additional  information  regarding  the  business,  financial  or        corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan        Documents,  as  the  Administrative  Agent  or  any  Lender  may  from  time  to  time  reasonably        request.         Documents required to be delivered pursuant to Section 6.01(a) or 6.01(b) or Section 6.02(d) (to  the extent any such documents are included in materials otherwise filed with the SEC) may be delivered  electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the  Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at  the  website  address  listed  on  Schedule  11.02;  or  (ii)  on  which  such  documents  are  posted  on  the  Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative  Agent  have  access  (whether  a  commercial,  third  party  website  or  whether  sponsored  by  the  Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to  the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies  until  a  written  request  to  cease  delivering  paper  copies  is  given  by  the  Administrative  Agent  or  such  Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by facsimile or e- mail) of the posting of any such documents and provide to the Administrative Agent by e-mail electronic  versions  (i.e.,  soft  copies)  of  such  documents.   The  Administrative  Agent  shall  have  no  obligation  to  request the delivery of or to maintain paper copies of the documents referred to above, and in any event  shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for  delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies  of such documents.         The Borrower hereby acknowledges that (a) the Administrative Agent and/or an Affiliate thereof  may,  but  shall  not  be  obligated  to,  make  available  to  the  Lenders  and  the  L/C  Issuer  materials  and/or  information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by  posting  the  Borrower  Materials  on  IntraLinks,  Syndtrak,  ClearPar  or  a  substantially  similar  electronic  transmission system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may have  personnel who do not wish to receive material non-public information with respect to the Borrower or its  Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and  other market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees that  it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be  distributed  to  the  Public  Lenders  and  that  (w)  all  such  Borrower  Materials  shall  be  clearly  and  conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear  prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall  be  deemed  to  have  authorized  the  Administrative  Agent,  any  Affiliate  thereof,  the  L/C  Issuer  and  the  Lenders to treat such Borrower Materials as not containing any material non-public information (although  it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United  States federal and state securities Laws; provided, however, that to the extent such Borrower Materials  constitute  Information,  they  shall  be  treated  as  set  forth  in  Section  11.07;  (y)  all  Borrower  Materials  marked  “PUBLIC”  are  permitted  to  be  made  available  through  a  portion  of  the  Platform  designated  “Public Side Information;” and (z) the Administrative Agent and any Affiliate thereof shall be entitled to  treat  any  Borrower  Materials  that  are  not  marked  “PUBLIC”  as  being  suitable  only  for  posting  on  a  portion of the Platform not designated as “Public Side Information.”  Notwithstanding the foregoing, the  Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”         6.03  Notices.         Promptly notify the Administrative Agent and each Lender of:               (a)   the occurrence of any Default.                                        78  CHAR1\1593539v8  





 






            (b)   any  matter  that  has  resulted  or  could  reasonably  be  expected  to  result  in  a        Material Adverse Effect.               (c)   the occurrence of any ERISA Event.               (d)   any material change in accounting policies or financial reporting practices by any        Loan Party or any Subsidiary, including any determination by the Borrower referred to in Section        2.10(b).         Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible  Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action  the Borrower has taken and proposes to take with respect thereto.  Each notice pursuant to Section 6.03(a)  shall describe with particularity any and all provisions of this Agreement and any other Loan Document  that have been breached.         6.04  Payment of Taxes.         Pay and discharge, as the same shall become due and payable, all its tax liabilities, assessments  and  governmental  charges  or  levies  upon  it  or  its  properties  or  assets,  unless  (i)  the  same  are  being  contested  in  good  faith  by  appropriate  proceedings  diligently  conducted  and  adequate  reserves  in  accordance with GAAP are being maintained by such Loan Party or such Subsidiary or (ii) the failure to  do so could not reasonably be expected to have a Material Adverse Effect.         6.05  Preservation of Existence, Etc.               (a)   Preserve, renew and maintain in full force and effect its legal existence under the        Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or        7.05.               (b)   Preserve, renew and maintain in full force and effect its good standing under the        Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or        7.05.               (c)   Take all reasonable action to maintain all rights, privileges, permits, licenses and        franchises necessary or desirable in the normal conduct of its business, except to the extent that        the failure to do so could not reasonably be expected to have a Material Adverse Effect.               (d)   Preserve  or  renew  all  of  its  IP  Rights,  the  non-preservation  or  non-renewal  of        which could reasonably be expected to have a Material Adverse Effect.         6.06  Maintenance of Properties.               (a)   Maintain,  preserve  and  protect  all  of  its  material  properties  and  equipment        necessary in the operation of its business in good working order and condition, ordinary wear and        tear excepted.               (b)   Make all necessary repairs thereto and renewals and replacements thereof, except        where the failure to do so could not reasonably be expected to have a Material Adverse Effect.               (c)   Use the standard of care typical in the industry in the operation and maintenance        of its facilities.                                         79  CHAR1\1593539v8  





 






      6.07  Maintenance of Insurance.               (a)   Maintain  in  full  force  and  effect  insurance  (including  worker’s  compensation        insurance,  liability  insurance,  casualty  insurance  and  business  interruption  insurance)  with        financially sound and reputable insurance companies not Affiliates of the Borrower (other than        with  respect  to  WAHI  or  other  captive  insurance  company),  in  such  amounts,  with  such        deductibles and covering such risks as are customarily carried by companies engaged in similar        businesses and owning similar properties in localities where such Loan Party or such Subsidiary        operates.               (b)   Within thirty (30) days of the Closing Date (or such later date as agreed to by the        Administrative Agent in its sole discretion), cause the Administrative Agent and its successors        and assigns to be named as lender’s loss payee or mortgagee, as its interest may appear, and/or        additional insured with respect to any such insurance providing liability coverage or coverage in        respect of any Collateral, and use commercially reasonable efforts to cause each provider of any        such  insurance  to  agree,  by  endorsement  upon  the  policy  or  policies  issued  by  it  or  by        independent  instruments  furnished  to  the  Administrative  Agent,  that  it  will  give  the        Administrative Agent thirty (30) days (or such lesser amount as the Administrative Agent may        agree) prior written notice before any such policy or policies shall be altered or canceled. So long        as no Event of Default has occurred and is continuing, the Administrative Agent will turn over to        the Loan Parties any proceeds of such insurance received pursuant to policies owned by the Loan        Parties or their Subsidiaries upon receipt thereof by the Administrative Agent.         6.08  Compliance with Laws.         Comply  with  the  requirements  of  all  Laws  and  all  orders,  writs,  injunctions  and  decrees  applicable to it or to its business or property, except in such instances in which (a) such requirement of  Law  or  order,  writ,  injunction  or  decree  is  being  contested  in  good  faith  by  appropriate  proceedings  diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a  Material Adverse Effect.         6.09  Books and Records.               (a)   Maintain  proper  books  of  record  and  account,  in  which  full,  true  and  correct        entries in all material respects and in conformity with GAAP consistently applied shall be made        of all financial transactions and matters involving the assets and business of such Loan Party or        such Subsidiary, as the case may be.               (b)   Maintain  such  books  of  record  and  account  in  material  conformity  with  all        applicable requirements of any Governmental Authority having regulatory jurisdiction over such        Loan Party or such Subsidiary, as the case may be.         6.10  Inspection Rights.               (a)   Permit representatives and independent contractors of the Administrative Agent        (who may be accompanied by any Lender or a representative thereof) to visit and inspect any of        its properties, to examine its corporate, financial and operating records, and make copies thereof        or  abstracts  therefrom,  and  to  discuss  its  affairs,  finances  and  accounts  with  its  officers,  and        independent  public  accountants, all  at  the expense  of  the Borrower (except  that  the Borrowers        will not be required to reimburse the cost of more than one such inspection in any calendar year        unless an Event of Default has occurred and is continuing) and at such reasonable times during                                         80  CHAR1\1593539v8  





 






      normal  business  hours  and  as  often  as  may  be  reasonably  desired,  upon  reasonable  advance        written  notice  to  the  Borrower;  provided,  however,  that  when  an  Event  of  Default  exists  the        Administrative Agent or any of its representatives or independent contractors (in each case, who        may be accompanied by any Lender or a representative thereof) may do any of the foregoing at        the  expense  of  the  Borrower  at  any  time  during  normal  business  hours  and  without  advance        written notice.               (b)   If requested by the Administrative Agent in writing in its sole discretion after the        occurrence and during the continuation of an Event of Default, permit the Administrative Agent,        and its representatives, upon reasonable advance written notice to the Borrower, to conduct an        annual audit of the Collateral at the expense of the Borrower.         6.11  Use of Proceeds.         Use the proceeds of the Credit Extensions (a) to finance working capital, capital expenditures and  other lawful corporate purposes, including without limitation, Permitted Acquisitions, (b) to refinance the  Existing Credit Agreement and other existing Indebtedness and (c) to finance the payment of fees and  expenses in connection  with  any  of the foregoing  or  the  credit facility  provided  for  in  this  Agreement  (other than arrangement fees or other similar fees);  provided that in no event shall the proceeds of the  Credit Extensions be used in contravention of any Law or of any Loan Document.         6.12  ERISA Compliance.         Do,  and  cause  each  of  its  ERISA  Affiliates  to  do,  each  of  the  following,  except  as  could  not  reasonably be expected to result in a Material Adverse Effect: (a) maintain each Plan in compliance in all  material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or  state  Law;  (b)  cause  each Plan  that is qualified  under Section 401(a)  of the  Internal  Revenue  Code to  maintain such qualification; and (c) make all required contributions to any Plan subject to Section 412,  Section 430 or Section 431 of the Internal Revenue Code.         6.13  Additional Guarantors.         Within forty-five (45) days (or such later date as the Administrative Agent may agree in its sole  discretion) after any Person becomes a Material Domestic Subsidiary, cause such Person to (a) become a  Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or such other  documents as the Administrative Agent shall deem appropriate for such purpose, and (b) upon the request  of the Administrative Agent in its sole discretion, deliver to the Administrative Agent such Organization  Documents,  resolutions  and  favorable  opinions  of  counsel,  all  in  form,  content  and  scope  reasonably  satisfactory  to  the  Administrative  Agent;  provided  that  in  no  event  shall  a  Foreign  Subsidiary  or  a  FSHCO be required to become a Guarantor.         6.14  Pledged Assets.               (a)   Equity Interests.  Cause (i) 100% of the issued and outstanding Equity Interests        of each Domestic Subsidiary and (ii) 65% (or such greater percentage that, due to a change in an        applicable  Law  after  the  Closing  Date,  (A)  could  not  reasonably  be  expected  to  cause  the        undistributed  earnings  of  such  Foreign  Subsidiary  or  FSHCO  as  determined  for  United  States        federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s or        FSHCO’s United States parent and (B) could not reasonably be expected to cause any material        adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within        the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity                                         81  CHAR1\1593539v8  





 






      Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each        Foreign Subsidiary or FSHCO directly owned by any Loan Party to be subject at all times to a        first  priority,  perfected  Lien  in  favor  of  the  Administrative  Agent  pursuant  to  the  terms  and        conditions  of  the  Collateral  Documents,  and,  in  connection  with  the  foregoing,  deliver  to  the        Administrative  Agent  such  other  documentation  as  the  Administrative  Agent  may  reasonably        request  including,  any  filings  and  deliveries  to  perfect  such  Liens  and  favorable  opinions  of        counsel all in form and substance reasonably satisfactory to the Administrative Agent.               (b)   Other Property.  Cause all property (other than Excluded Property) of each Loan        Party  to  be  subject  at  all times  to  first  priority,  perfected  Liens  in  favor  of  the  Administrative        Agent to secure the Obligations pursuant to the Collateral Documents (subject to Permitted Liens)        and,  in  connection  with  the  foregoing,  deliver  to  the  Administrative  Agent  such  other        documentation  as  the  Administrative  Agent  may  reasonably  request  including  filings  and        deliveries  necessary  to  perfect  such  Liens,  Organization  Documents,  resolutions  and  favorable        opinions of counsel to such Person, all in form, content and scope reasonably satisfactory to the        Administrative Agent.           6.15  Anti-Corruption Laws.          Conduct  its  businesses  in  compliance  with  the  United  States  Foreign  Corrupt  Practices  Act  of  1977,  the  UK  Bribery  Act  2010  and  other  similar  anti-corruption  legislation  in  other jurisdictions  and  maintain policies and procedures designed to promote and achieve compliance with such laws.         6.16  KYC Information.          Promptly following any request therefor, information and documentation reasonably requested by  the  Administrative  Agent  or  any  Lender  for  purposes  of  compliance  with  applicable  “know  your  customer”  requirements  under  the  PATRIOT  Act,  the  Beneficial  Ownership  Regulation  or  other  applicable anti-money laundering laws.         6.17  Post-Closing Matters.          To the extent not delivered on the Closing Date, deliver the items identified on Schedule 6.17 to  the Administrative Agent by the date set forth on Schedule 6.17 (or such later date as the Administrative  Agent may determine in its sole discretion).                                   ARTICLE VII.                               NEGATIVE COVENANTS         Until the Facility Termination Date, no Loan Party shall, nor shall it permit any Subsidiary to,  directly or indirectly:         7.01  Liens.         Create,  incur, assume  or  suffer  to  exist any  Lien  upon  any  of  its  property,  assets  or  revenues,  whether now owned or hereafter acquired, other than the following:               (a)   Liens pursuant to any Loan Document;                                          82  CHAR1\1593539v8  





 






            (b)   Liens existing on the Closing Date and listed on Schedule 7.01 and any renewals        or extensions thereof; provided that the property covered thereby is not increased;               (c)   Liens  (other  than  Liens  imposed  under  ERISA)  for  taxes,  assessments  or        governmental charges  or levies not  yet  due  or  which are being  contested in  good faith  and  by        appropriate  proceedings  diligently  conducted,  if  adequate  reserves  with  respect  thereto  are        maintained on the books of the applicable Person in accordance with GAAP;               (d)   Liens of carriers, warehousemen, mechanics, materialmen and repairmen or other        like Liens arising in the ordinary course of business which are not overdue for a period of more        than thirty (30) days or which are being contested in good faith and by appropriate proceedings        diligently conducted, if adequate reserves with respect thereto are maintained on the books of the        applicable Person in accordance with GAAP;               (e)   pledges  or  deposits  in  the  ordinary  course  of  business  in  connection  with        workers’ compensation, unemployment insurance and other social security legislation, other than        any Lien imposed by ERISA;               (f)   deposits to secure the performance of bids, trade contracts and leases (other than        Indebtedness),  statutory  obligations,  surety  and  appeal  bonds,  performance  bonds  and  other        obligations of a like nature incurred in the ordinary course of business;               (g)   easements,  rights-of-way,  zoning  and  other  restrictions,  minor  defects  and        irregularities  in  title,  and  other  similar  encumbrances  affecting  real  property  which,  in  the        aggregate, are not material in amount, and which do not in any case materially detract from the        value  of  the  property  subject  thereto  or  materially  interfere  with  the  ordinary  conduct  of  the        business of the applicable Person;               (h)   Liens securing judgments for the payment of money (or appeal or other surety        bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h);               (i)   Liens  securing  Indebtedness  permitted  under  Section  7.03(e);  provided  that  (i)        such Liens do not at any time encumber any property other than the property financed by such        Indebtedness and (ii) such Liens attach to such property concurrently with or within ninety (90)        days after the acquisition thereof;               (j)   leases or subleases and licenses and sublicenses granted to others not interfering        in any material respect with the business of any Loan Party or any Subsidiary;               (k)   any  interest  of  title  of  a  lessor  under,  and  Liens  arising  from  UCC  financing        statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to,        leases permitted by this Agreement;               (l)   Liens deemed to exist in connection with Investments in repurchase agreements        permitted under Section 7.02(a);               (m)   normal and customary rights of setoff upon deposits of cash in favor of banks or        other depository institutions;                (n)   Liens  of  a  collection  bank  arising  under  Section  4-210  of  the  Uniform        Commercial Code on items in the course of collection;                                         83  CHAR1\1593539v8  





 






            (o)   Liens  granted  in  the  ordinary  course  of  business  on  the  unearned  portion  of        insurance premiums securing the financing of insurance premiums to the extent the financing is        permitted under Section 7.03(o);               (p)   Liens solely on any cash earnest money deposits made by the Borrower or any of        its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a        Permitted Acquisition;               (q)   Liens assumed by the Borrower or its Subsidiaries in connection with a Permitted        Acquisition that secure Acquired Indebtedness;               (r)   Liens in favor of customs and revenue authorities arising as a matter of law to        secure payment of customs duties in connection with the importation of goods;               (s)   Liens  on  the  assets  of  Subsidiaries  that  are  not  Loan  Parties  securing        Indebtedness permitted by Section 7.03(j);                (t)   Liens consisting of intellectual property security agreements filed with respect to        any Loan Party’s intellectual property as of the Closing Date (other than Liens in favor of the        Administrative Agent) so long as there is no outstanding Indebtedness or other obligations owing        to the secured party of record by any such Loan Party; and               (u)   Liens not otherwise permitted by clauses (a) through (t) securing not more than        $25,000,000 in the aggregate.         Notwithstanding anything to the contrary contained herein, no Liens shall be permitted on real  property other than the Liens permitted by Section 7.01(g).         7.02  Investments.         Make any Investments, except:               (a)   Investments held in the form of cash or Cash Equivalents or made in accordance        with the TrueBlue Investment Policy;               (b)   Investments existing as of the Closing Date and set forth on Schedule 7.02;               (c)   Investments in any Person that is a Loan Party prior to with giving effect to such        Investment;               (d)   Investments by any Subsidiary that is not a Loan Party in any other Subsidiary        that is not a Loan Party;               (e)   Investments  consisting  of  extensions  of  credit  in  the  nature  of  accounts        receivable  or  notes  receivable  arising  from  the  grant  of  trade  credit  in  the  ordinary  course  of        business;               (f)   Guarantees permitted by Section 7.03;               (g)   Permitted Acquisitions;                (h)   Permitted Intercompany Advances;                                        84  CHAR1\1593539v8  





 






            (i)   deposits of cash made in the ordinary course of business to secure performance        of operating leases;               (j)   non-cash loans to employees, officers, and directors of the Borrower or any of its        Subsidiaries  for  the  purpose  of  purchasing  Equity  Interests  in  the  Borrower  or  any  of  its        Subsidiaries  so  long  as  the  proceeds  of  such  loans  are  used  in  their  entirety  to  purchase  such        Equity Interests;               (k)   so long as WAHI is a Subsidiary of the Borrower, (i) all investments in WAHI        existing on the Closing Date and (ii) additional investments in WAHI not to exceed, with respect        to  each  transfer  of  workers’  compensation  liabilities  by  the  Borrower  and  its  Subsidiaries  to        WAHI  for  a  policy  period,  110%  of  the  amount  of  workers’  compensation  liabilities  so        transferred for such policy period, valued on the transfer date;              (l)   [reserved];               (m)   Approved Customer List Acquisitions;                (n)   Investments in negotiable instruments deposited or to be deposited for collection        in the ordinary course of business;               (o)   Investments received in settlement of amounts due to any Loan Party or any of its        Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its        Subsidiaries  as  a result of any  insolvency  proceeding  involving  an  account  debtor or upon the        foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;                (p)   Equity Interests or other securities acquired in connection with the satisfaction or        enforcement  of  Indebtedness  or  claims  due  and  owing  to  a  Loan  Party  or  its  Subsidiaries  (in        bankruptcy  or  customers  or  suppliers  or  otherwise  in  the  ordinary  course  of  business)  or  as        security for any such Indebtedness or claims;                (q)   de  minimis  Investments  consisting  of  the  formation  of  additional  Subsidiaries;        and               (r)   Investments of a nature not contemplated in the foregoing clauses in an amount        not to exceed $25,000,000 in the aggregate at any time outstanding.         7.03  Indebtedness.         Create, incur, assume or suffer to exist any Indebtedness, except:               (a)   Indebtedness under the Loan Documents;               (b)   Indebtedness  outstanding  on  the  Closing  Date  set  forth  on  Schedule  7.03  (and        any Refinancing Indebtedness in respect of such Indebtedness);               (c)   intercompany  Indebtedness  permitted  under  Section  7.02;  provided  that  in  the        case of Indebtedness owing by a Loan Party to a Foreign Subsidiary (i) such Indebtedness shall        be unsecured and (ii) such Indebtedness shall not be prepaid unless no Event of Default exists        immediately prior to or after giving effect to such prepayment;                                         85  CHAR1\1593539v8  





 






            (d)   obligations  (contingent  or  otherwise)  existing  or  arising  under  any  Swap        Contract; provided that such obligations are (or were) entered into by such Person in the ordinary        course  of  business  for  the  purpose  of  directly  mitigating  risks  associated  with  fluctuations  in        interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market        view;”;               (e)   purchase money Indebtedness (including obligations in respect of capital leases        and Synthetic Lease Obligations) hereafter incurred to finance the purchase of fixed assets, and        any  Refinancing  Indebtedness  in  respect  of  such  Indebtedness;  provided  that  (i)  the  aggregate        outstanding principal amount of all such Indebtedness shall not exceed $25,000,000 at any one        time outstanding; and (ii) such Indebtedness when incurred shall not exceed the purchase price of        the asset(s) financed;               (f)   unsecured  Indebtedness  of  the  Borrower  and  its  Subsidiaries  owing  to  former        employees, officers, or directors (or any spouses, ex-spouses, or estates of any of the foregoing)        incurred  in  connection  with  the  repurchase  by the  Borrower  and  its Subsidiaries  of  the  Equity        Interests of the Borrower that has been issued to such Persons, so long as (i) no Event of Default        has occurred and is continuing or would result from the incurrence of such Indebtedness, (ii) the        aggregate  amount  of  all  such  Indebtedness  outstanding  at  any  one  time  does  not  exceed        $2,000,000,  and  (iii)  such  Indebtedness  is  subordinated  to  the  Obligations  on  terms  and        conditions reasonably acceptable to the Administrative Agent;               (g)   Indebtedness  in  connection  with  the  deferred  purchase  price  of  Approved        Customer List Acquisitions;              (h)   reimbursement obligations of WAHI under letters of credit issued for the account        of WAHI to the extent such letters of credit are secured by cash or Cash Equivalents pledged to        secure only the reimbursement obligations with respect to such letters of credit;              (i)   unsecured  Indebtedness  of  any  Loan  Party  that  is  incurred  on  the  date  of  the        consummation of a Permitted Acquisition solely for the purpose of consummating such Permitted        Acquisition  so long  as  (i) no  Event  of  Default  has  occurred  and  is  continuing  or  would  result        therefrom,  (ii)  such  unsecured  Indebtedness  is  not  incurred  for  working  capital  purposes,  (iii)        such  unsecured  Indebtedness  does  not  mature prior to  the date  that  is  six  (6)  months  after  the        Maturity Date, and (iv) the aggregate principal amount of all such Indebtedness does not exceed        $25,000,000 at any time outstanding;               (j)   so  long  as  not  otherwise  prohibited  by  the  Agreement,  working  capital        Indebtedness of Subsidiaries that are not Loan Parties in an amount not to exceed $5,000,000;               (k)   unsecured Indebtedness owing to sellers of assets or Equity Interests to a Loan        Party that is incurred by the applicable Loan Party in connection with the consummation of one or        more Permitted Acquisitions so long as (i) the aggregate principal amount for all such unsecured        Indebtedness does not exceed $5,000,000 at any one time outstanding and (ii) is subordinated to        the Obligations on terms and conditions reasonably acceptable to the Administrative Agent;               (l)   contingent liabilities in respect of any indemnification obligation, adjustment of        purchase price, non-compete, or similar obligation of the Borrower or the applicable Loan Party        incurred in connection with the consummation of one or more Permitted Acquisitions;                                          86  CHAR1\1593539v8  





 






            (m)   Acquired Indebtedness in an amount not to exceed $5,000,000 outstanding at any        one time;               (n)   Indebtedness  of  the  Borrower  or  any  of  its  Subsidiaries  owing  to  WAHI  as  a        result of borrowing back from WAHI the amount invested by the Borrower or such Subsidiary as        described in Section 7.02(k);               (o)   Indebtedness owed to any Person providing property, casualty, liability, or other        insurance to the Borrower or any of its Subsidiaries, so long as the amount of such Indebtedness        is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of,        such  insurance  for  the  year  in  which  such  Indebtedness  is  incurred  and  such  Indebtedness  is        outstanding only during such year;               (p)   endorsement of instruments, any check, draft or other item of payment payable to        a Loan Party or Subsidiary thereof for deposit;                (q)   Indebtedness  incurred  in  the  ordinary  course  of  business  under  performance,        surety, statutory or appeal bonds;               (r)   unsecured  Indebtedness  incurred  in  respect  of  netting  services,  overdraft        protection and other like services, incurred in the ordinary course of business;                (s)   Indebtedness consisting of Investments permitted by Section 7.02 (other than to        the extent permitted by reference to this Section 7.03 (or any clause hereof));               (t)   other  unsecured  Indebtedness  in  an  aggregate  principal  amount  not  to  exceed        $25,000,000 at any one time outstanding; and               (u)   Guarantees with respect to Indebtedness permitted under this Section 7.03.         7.04  Fundamental Changes.         Merge, dissolve, liquidate or consolidate with or into another Person, except that so long as no  Event of Default exists or would result therefrom, (a) the Borrower may merge or consolidate with any of  its Subsidiaries; provided that the Borrower is the continuing or surviving Person, (b) any Subsidiary may  merge  or  consolidate  with  any  other  Subsidiary  provided  that  if  a  Loan  Party  is  a  party  to  such  transaction, the continuing or surviving Person is a Loan Party, (c) the Borrower or any Subsidiary may  merge with any other Person in connection with a Permitted Acquisition; provided that (i) if the Borrower  is a party to such transaction, the Borrower is the continuing or surviving Person and (ii) if a Loan Party is  a party to such transaction, such Loan Party is the surviving Person and (d) any Subsidiary may dissolve,  liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as  applicable, could not have a Material Adverse Effect.         7.05  Dispositions.         Make any Disposition except:               (a)   Permitted Transfers;                (b)   Dispositions of assets acquired by the Borrower and its Subsidiaries pursuant to a        Permitted  Acquisition  consummated  within  twelve  (12)  months  of  the  date  of  the  proposed                                         87  CHAR1\1593539v8  





 






      Disposition (the “Subject Permitted Acquisition”) so long as (i) the consideration received for the        assets to be so disposed is at least 75% of the fair market value thereof, (ii) the assets to be so        disposed  are  not  necessary  or  economically  desirable  in  connection  with  the  business  of  the        Borrower  and  its  Subsidiaries,  and  (iii)  the  assets  to  be  so  disposed  are  readily  identifiable  as        assets acquired pursuant to the subject Permitted Acquisition;                (c)   other  Dispositions  so  long  as  (i)  at  least  90%  of  the  consideration  paid  in        connection  therewith  shall  be  cash  or  Cash  Equivalents  paid  contemporaneously  with        consummation of the transaction and shall be in an amount not less than the fair market value of        the  property  disposed  of,  (ii)  if  such  transaction  is  a  Sale  and  Leaseback  Transaction,  such        transaction is not prohibited by the terms of Section 7.15, (iii) such transaction does not involve        the sale or other disposition of a minority Equity Interest in any Subsidiary that is wholly-owned,        directly  or  indirectly,  by  the  Borrower,  (iv)  such  transaction  does  not  involve  a  sale  or  other        disposition  of  receivables  other  than  receivables  owned  by  or  attributable  to  other  property        concurrently being disposed of in a transaction otherwise permitted under this Section 7.05, and        (v) the aggregate net book value of all of the assets sold or otherwise disposed of by the Loan        Parties and their Subsidiaries in all such transactions during the term of this Agreement shall not        exceed $25,000,000;               (d)   Dispositions of Investments in joint ventures to the extent required by, or made        pursuant to, customary buy/sell arrangements between, the joint venture parties set forth in joint        venture arrangements and similar binding arrangements; and                (e)   any  termination  of  any  lease  in  the  ordinary  course  of  business,  (ii)  any        expiration of any option agreement in respect of real or personal property and (iii) any surrender        or  waiver  of  contractual  rights  or  the  settlement,  release  or  surrender  of  contractual  rights  or        litigation claims (including in tort) in the ordinary course of business.          7.06  Restricted Payments.         Declare  or  make,  directly  or  indirectly,  any  Restricted  Payment,  or  incur  any  obligation  (contingent or otherwise) to do so, except that:               (a)   each  Subsidiary  may  make  Restricted  Payments  to  Persons  that  own  Equity        Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity        Interest in respect of which such Restricted Payment is being made;                (b)   each Loan Party and each Subsidiary may declare and make dividend payments        or other distributions payable solely in common Equity Interests of such Person;               (c)   each  Loan  Party  may  make  distributions  to  former  employees,  officers,  or        directors (or any spouses, ex-spouses, or estates of any of the foregoing), so long as on account of        redemptions  of  Equity  Interests  of  such  Loan  Party  held  by  such  Persons,  provided  that  the        aggregate amount of such redemptions made by such Loan Party plus the aggregate amount of        Indebtedness described in Section 7.03(k) shall not exceed $2,500,000 in any 12 month period;                (d)   each Loan Party may declare and pay any dividend or make any other payment or        distribution  to  its  then  current  or  former  employees  pursuant  to  such  Loan  Party’s  deferred        compensation plans as in effect on the Closing Date;                                           88  CHAR1\1593539v8  





 






            (e)   so long as no Event of Default exists immediately prior and after giving effect        thereto, the Borrower may make other Restricted Payments; provided that after giving effect to        any  such  Restricted  Payment,  the  Borrower  is,  on  a  Pro  Forma  Basis,  in  compliance  with  the        financial covenants set forth in Section 7.11; and               (f)   each  Loan  Party  may  make  redemptions  of  Equity  Interests  to  cover  the        transaction costs of awards to employees, officers and directors (current or former), including the        cost of exercise (i.e., for a “net exercise” of an option) or the cost of any required tax withholding        obligations.          7.07  Change in Nature of Business.         Engage  in  any  material  line  of  business  substantially  different  from  those  lines  of  business  conducted by the Loan Parties and their Subsidiaries on the Closing Date or any business substantially  related or incidental thereto.         7.08  Transactions with Affiliates.         Enter into or permit to exist any transaction or series of transactions with any Affiliate of such  Person, whether or not in the ordinary course of business, other than (a) advances of working capital to  any Loan Party and any transactions between Loan Parties, (b) transfers of cash and assets to any Loan  Party,  (c)  intercompany  transactions  expressly  permitted  by  Section  7.02,  Section  7.03,  Section  7.04,  Section 7.05 or Section 7.06 or elsewhere in this Agreement or any other Loan Document, (d) normal and  reasonable compensation and reimbursement of expenses of officers and directors, (e) so long as it has  been approved by the Borrower’s or such Subsidiary’s board of directors in accordance with applicable  Law, any indemnity provided by the Borrower or its Subsidiaries for the benefit of their directors, (f) so  long as it has been approved by the Borrower’s or such Subsidiary’s board of directors, the payment of  reasonable fees, compensation, or employee benefit arrangements to executive officers and directors, (g)  payment of management, consulting, monitoring, royalty or advisory fees by any Subsidiary of a Loan  Party  to  Labor  Ready  Holdings,  Inc.,  a  Nevada  corporation  and  (h)  except  as  otherwise  specifically  limited in this Agreement, other transactions which are on terms and conditions substantially as favorable  to such Person as would be obtainable by it in a comparable arm’s length transaction with a Person other  than an Affiliate.         7.09  Burdensome Agreements.         Enter into, or permit to exist, any Contractual Obligation (except for the Loan Documents) that  (a) encumbers or restricts the ability of any such Person to (i) make Restricted Payments to any Loan  Party, (ii) pay any Indebtedness or other obligation owed to any Loan Party, (iii) make loans or advances  to any Loan Party, (iv) transfer any of its property to any Loan Party, (v) pledge its property pursuant to  the Loan Documents or (vi) act as a Loan Party pursuant to the Loan Documents, except (in respect of  any  of  the  matters  referred  to  in  clauses  (i)  through  (v)  above)  for  (1)  any  document  or  instrument  governing Indebtedness incurred pursuant to Section 7.03(e); provided that any such restriction contained  therein  relates  only  to  the  asset  or  assets  constructed  or  acquired  in  connection  therewith,  (2)  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  the  Permitted  Lien,  (3)  any  agreement in effect at the time any Subsidiary becomes a Subsidiary of the Borrower, so long as such  agreement  was  not  entered  into  solely  in  contemplation  of  such  Person  becoming  a  Subsidiary  of  the  Borrower, (4) customary restrictions and conditions contained in any agreement relating to the sale of any  property permitted under Section 7.05 pending the consummation of such sale, (5) applicable Laws or (6)  customary provisions in Contractual Obligations prohibiting assignment of such Contractual Obligation,                                        89  CHAR1\1593539v8  





 






or (b) requires the grant of any security for any obligation if such property is given as security for the  Obligations.         7.10  Use of Proceeds.         Use  the  proceeds  of  any  Credit  Extension,  whether  directly  or  indirectly,  and  whether  immediately,  incidentally  or  ultimately,  to  purchase  or  carry  margin  stock  (within  the  meaning  of  Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin  stock or to refund indebtedness originally incurred for such purpose.         7.11  Financial Covenants.               (a)   Consolidated Leverage Ratio.  Permit the Consolidated Leverage Ratio as of the        end of any fiscal quarter of the Borrower to be greater than 3.00:1.00; provided, that for each of        the four (4) fiscal quarters immediately following a Qualified Acquisition, commencing with the        fiscal quarter in which such Qualified Acquisition was consummated (such period of increase, the        “Leverage Increase Period”), the required ratio set forth above shall be increased to 3.50 to 1.00;        provided, further that (i) there shall only be two (2) Leverage Increase Periods during the term of        this Agreement, (ii) the maximum Consolidated Leverage Ratio shall revert to 3.00 to 1.00 at the        end of such four (4) fiscal quarter period and (iii) each Leverage Increase Period shall apply only        with respect to the calculation of the Consolidated Leverage Ratio for purposes of determining        compliance  with  this  Section  7.11  and  for  purposes  of  any  Qualified  Acquisition  Pro  Forma        Determination.               (b)   Consolidated  Fixed  Charge  Coverage  Ratio.   Permit  the  Consolidated  Fixed        Charge  Coverage  Ratio  as  of  the  end  of  any  fiscal  quarter  of  the  Borrower  to  be  less  than        1.25:1.00.         7.12  Prepayment of Other Indebtedness, Etc.               (a)   Amend  or  modify  any  of  the  terms  of  any  Indebtedness  in  excess  of  the        Threshold Amount of any Loan Party or any Subsidiary (other than Indebtedness arising under        the Loan Documents) if such amendment or modification would add or change any terms in a        manner materially adverse to any Loan Party or any Subsidiary, or shorten the final maturity or        average life to maturity or require any payment to be made sooner than originally scheduled or        increase the interest rate applicable thereto (unless, to the extent applicable, in accordance with        any subordination agreement or subordination terms with respect thereto).               (b)   Make (or give any notice with respect thereto) any voluntary or optional payment        or prepayment or redemption or acquisition for value of (including by way of depositing money        or securities with the trustee with respect thereto before due for the purpose of paying when due),        refund,  refinance  or  exchange  of  any  Indebtedness  in  excess  of  the Threshold  Amount  of  any        Loan Party or any Subsidiary (other than Indebtedness arising under the Loan Documents) allow        prepayments  so  long  as  (i)  no  Default  or  Event  of  Default  has  occurred  and  is  continuing  or        would result therefrom and (ii) after giving effect to any such prepayment, the Loan Parties are,        on a Pro Forma Basis, in compliance with the financial covenants set forth in Section 7.11.         7.13  Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of  Entity.                                          90  CHAR1\1593539v8  





 






            (a)   Amend, modify  or change  its Organization  Documents  in  a  manner  adverse  to        the Lenders.               (b)   Change its fiscal year.               (c)   With  respect  to  any  Loan  Party,  without  providing  ten  (10)  days  prior  written        notice to the Administrative Agent (or such lesser period as the Administrative Agent may agree),        change its name, state of formation or form of organization.         7.14  Ownership of Subsidiaries.         Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person  (other than the Borrower or any wholly-owned Subsidiary) to own any Equity Interests of any Subsidiary  except  to  qualify  directors  where  required  by  applicable  Law  or  to  satisfy  other  requirements  of  applicable Law with respect to the ownership of Equity Interests of Foreign Subsidiaries, or (b) permit  any Subsidiary to issue or have outstanding any shares of preferred Equity Interests.         7.15  Sale Leasebacks.         Enter into any Sale and Leaseback Transaction.         7.16  Sanctions.         Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend,  contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to  any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that,  at  the  time  of  such  funding,  is  the  subject  of  Sanctions,  or  in  any  other  manner  that  will  result  in  a  violation  by  any  Person  (including  any  Person  participating  in  the  transaction,  whether  as  Lender,  Arranger, Administrative Agent, L/C Issuer, Swingline Lender, or otherwise) of Sanctions.         7.17  Anti-Corruption Laws.            Directly or indirectly use any Credit Extension or the proceeds of any Credit Extension for any  purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery  Act 2010 or other similar anti-corruption legislation in other jurisdictions.                                    ARTICLE VIII.                        EVENTS OF DEFAULT AND REMEDIES         8.01  Events of Default.         Any of the following shall constitute an “Event of Default”:               (a)   Non-Payment.  Any Loan Party fails to pay (i) when and as required to be paid        herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash        Collateral  in  respect  of  L/C  Obligations,  or  (ii)  within  three  (3)  Business  Days  after  the  same        becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or                                         91  CHAR1\1593539v8  





 






      (iii)  within  five  (5)  Business  Days  after  the  same  becomes  due,  any  other  amount  payable        hereunder or under any other Loan Document; or               (b)   Specific  Covenants.   Any  Loan  Party  fails  to  perform  or  observe  any  term,        covenant  or  agreement  contained  in  any  of  Section  6.01,  6.02,  6.03(a),  6.05(a)  (solely  with        respect to the Loan Parties), 6.10 or 6.11 or Article VII; or               (c)   Other Defaults.  Any Loan Party fails to perform or observe any other covenant        or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on        its part to be performed or observed and such failure continues for thirty (30) days; or               (d)   Representations  and  Warranties.   Any  representation,  warranty,  certification  or        statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other        Loan  Document,  or  in  any  document  delivered  in  connection  herewith  or  therewith  shall  be        incorrect  or  misleading  in  any  material  respects  (or,  if  qualified  by  materiality  or  Material        Adverse Effect, in any respect) when made or deemed made; or               (e)   Cross-Default.   (i)  Any  Loan  Party  or  any  Subsidiary  (A)  fails  to  make  any        payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,        or otherwise) after giving effect to any grace period in respect of any Indebtedness or Guarantee        (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate        principal  amount  (including  undrawn  committed  or  available  amounts  and  including  amounts        owing to all  creditors  under any  combined  or  syndicated credit arrangement)  of  more  than the        Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to        any  such  Indebtedness  or  Guarantee  or  contained  in  any  instrument  or  agreement  evidencing,        securing or relating thereto, or any other event occurs, the effect of which default or other event is        to  cause,  or  to  permit  the  holder  or  holders  of  such  Indebtedness  or  the  beneficiary  or        beneficiaries  of  such  Guarantee  (or  a  trustee  or  agent  on  behalf  of  such  holder  or  holders  or        beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to        be  demanded  or  to  become  due  or  to  be  repurchased,  prepaid,  defeased  or  redeemed        (automatically  or  otherwise),  or  an  offer  to  repurchase,  prepay,  defease  or  redeem  such        Indebtedness to  be  made,  prior to its  stated  maturity,  or such  Guarantee to  become  payable  or        cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an        Early  Termination  Date  (as  defined  in  such  Swap  Contract)  resulting  from  (A)  any  event  of        default under such Swap Contract as to which any Loan Party or any Subsidiary is the Defaulting        Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such        Swap Contract as to which any Loan Party or any Subsidiary is an Affected Party (as so defined)        and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as        a result thereof is greater than the Threshold Amount; or               (f)   Insolvency  Proceedings,  Etc.   Any  Loan  Party  or  any  Subsidiary  institutes  or        consents  to  the  institution  of  any  proceeding  under  any  Debtor  Relief  Law,  or  makes  an        assignment  for  the  benefit  of  creditors;  or  applies  for  or  consents  to  the  appointment  of  any        receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all        or  any  material part  of its property;  or  any  receiver, trustee, custodian,  conservator,  liquidator,        rehabilitator or similar officer is appointed without the application or consent of such Person and        the  appointment  continues  undischarged  or  unstayed  for  sixty  (60)  calendar  days;  or  any        proceeding under any Debtor Relief Law relating to any such Person or to all or any material part        of  its  property  is  instituted  without  the  consent  of  such  Person  and  continues  undismissed  or        unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or                                         92  CHAR1\1593539v8  





 






            (g)   Inability  to  Pay  Debts;  Attachment.   (i)  Any  Loan  Party  or  any  Subsidiary        becomes unable or admits in writing its inability or fails generally to pay its debts as they become        due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied        against all or any material part of the property of any such Person and is not released, vacated or        fully bonded within thirty (30) days after its issue or levy; or               (h)   Judgments.  There is entered against any Loan Party or any Subsidiary (i) one or        more final judgments or orders for the payment of money in an aggregate amount (as to all such        judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent        third-party insurance as to which the insurer has been notified of the claim and has not denied        coverage  thereof),  or  (ii)  any  one  or  more  non-monetary  final  judgments  that  have,  or  could        reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and,        in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment        or  order,  or  (B)  there  is  a  period  of  thirty  (30)  consecutive  days  during  which  a  stay  of        enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or               (i)   ERISA.   (i)  An  ERISA  Event  occurs  with  respect  to  a  Pension  Plan  or        Multiemployer Plan which has resulted or could reasonably be expected to result in liability of        any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in        an  aggregate  amount  in  excess  of  the  Threshold  Amount,  or  (ii)  the  Borrower  or  any  ERISA        Affiliate  fails  to  pay  when  due,  after  the  expiration  of  any  applicable  grace  period,  any        installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a        Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or               (j)   Invalidity of Loan Documents.  Any material provision of any Loan Document,        at any time after its execution and delivery and for any reason other than as expressly permitted        hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and        effect or ceases to give the Administrative Agent any material part of the Liens purported to be        created thereby (other than as a result of an action of the Administrative Agent or a failure of the        Administrative Agent to take any action within its control); or any Loan Party or any other Person        contests in any manner the validity or enforceability of any provision of any Loan Document; or        any Loan Party denies that it has any or further liability or obligation under any provision of any        Loan Document, or purports to revoke, terminate or rescind any Loan Document; or               (k)   Change of Control.  There occurs any Change of Control.         8.02  Remedies Upon Event of Default.         If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of,  or may, with the consent of, the Required Lenders, take any or all of the following actions:               (a)   declare the commitment of each Lender to make Loans and any obligation of the        L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and        obligation shall be terminated;               (b)   declare the unpaid principal amount of all outstanding Loans, all interest accrued        and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan        Document  to  be  immediately  due  and  payable,  without  presentment,  demand,  protest  or  other        notice of any kind, all of which are hereby expressly waived by the Borrower;                                          93  CHAR1\1593539v8  





 






            (c)   require that the Borrower Cash Collateralize the L/C Obligations (in an amount        equal to the Minimum Collateral Amount with respect thereto); and               (d)   exercise  on  behalf  of  itself,  the  Lenders  and  the  L/C  Issuer  all  rights  and        remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or applicable        Law or at equity;   provided,  however,  that  upon  the  occurrence  of  an  actual  or  deemed  entry  of  an  order  for  relief  with  respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to  make  Loans  and  any  obligation  of  the  L/C  Issuer  to  make  L/C  Credit  Extensions  shall  automatically  terminate,  the  unpaid  principal  amount  of  all  outstanding  Loans  and  all  interest  and  other  amounts  as  aforesaid  shall  automatically  become  due  and  payable,  and  the  obligation  of  the  Borrower  to  Cash  Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without  further act of the Administrative Agent or any Lender.         8.03  Application of Funds.         After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically  become  immediately  due  and  payable  and the  L/C  Obligations  have automatically  been  required to  be  Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the  Obligations shall, subject to the provisions of Sections 2.14 and 2.15, be applied by the Administrative  Agent in the following order:         First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and  other  amounts  (including  fees,  charges  and  disbursements  of  counsel  to  the  Administrative  Agent  and  amounts payable under Article III) payable to the Administrative Agent in its capacity as such;         Second,  to  payment  of  that  portion  of  the  Obligations  constituting  fees,  indemnities  and  other  amounts  (other  than  principal,  interest  and  Letter  of  Credit  Fees)  payable  to  the  Lenders  and  the  L/C  Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer  and  amounts  payable  under  Article  III),  ratably  among  them  in  proportion  to  the  respective  amounts  described in this clause Second payable to them;         Third, to  payment  of that  portion  of  the  Obligations constituting accrued and  unpaid  Letter  of  Credit Fees and interest on the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer  in proportion to the respective amounts described in this clause Third payable to them;         Fourth,  to  (a)  payment  of  that  portion  of  the  Obligations  constituting  unpaid  principal  of  the  Loans  and  L/C  Borrowings,  (b)  payment  of  Obligations  then  owing  under  any  Secured  Hedge  Agreements, (c) payment of Obligations then owing under any Secured Cash Management Agreements  and (d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of  Letters of Credit, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management  Banks in proportion to the respective amounts described in this clause Fourth payable to them; and         Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the  Borrower or as otherwise required by Law.         Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn  amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under  such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters  of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other                                         94  CHAR1\1593539v8  





 






Obligations,  if  any,  in  the  order  set  forth  above.   Excluded  Swap  Obligations  with  respect  to  any  Guarantor shall not be paid with amounts received from such Guarantor or such Guarantor’s assets, but  appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the  allocation to Obligations otherwise set forth above in this Section.         Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements  and  Secured  Hedge  Agreements  shall  be  excluded  from  the  application  described  above  if  the  Administrative Agent has not received a Secured Party Designation Notice, together with such supporting  documentation as the Administrative Agent may request, from the applicable Cash Management Bank or  Hedge  Bank,  as  the  case  may  be  (unless  such  Cash  Management  Bank  or  Hedge  Bank  is  the  Administrative Agent or an Affiliate thereof).  Each Cash Management Bank or Hedge Bank not a party  to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,  be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to  the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.                                    ARTICLE IX.                              ADMINISTRATIVE AGENT         9.01  Appointment and Authority.         Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its  behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the  Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to  the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are  reasonably  incidental  thereto.   The  provisions  of  this  Article  are  solely  for  the  benefit  of  the  Administrative Agent, the Lenders and the L/C Issuer, and no Loan Party shall have rights as a third party  beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent” herein  or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is  not  intended  to  connote  any  fiduciary  or  other  implied  (or  express)  obligations  arising  under  agency  doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to  create or reflect only an administrative relationship between contracting parties.         The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and  each  of  the  Lenders  (in  its  capacities  as  a  Lender,  Swingline  Lender  (if  applicable),  potential  Hedge  Banks  and  potential  Cash  Management  Banks)  and  the  L/C  Issuer  hereby  irrevocably  appoints  and  authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of  acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to  secure  any  of  the  Obligations,  together  with  such  powers  and  discretion  as  are  reasonably  incidental  thereto.  In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents  and  attorneys-in-fact  appointed  by  the  Administrative  Agent  pursuant  to  Section  9.05  for  purposes  of  holding  or  enforcing  any  Lien  on  the  Collateral  (or  any  portion  thereof)  granted  under  the  Collateral  Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative  Agent,  shall  be  entitled  to  the  benefits  of  all  provisions  of  this  Article  IX  and  Article  XI  (including  Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent”  under the Loan Documents) as if set forth in full herein with respect thereto.         9.02  Rights as a Lender.         The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in  its  capacity  as  a  Lender  as  any  other  Lender  and  may  exercise  the  same  as  though  it  were  not  the                                         95  CHAR1\1593539v8  





 






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 any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were  not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or to  provide notice to or consent of the Lenders with respect thereto.         9.03  Exculpatory Provisions.         The Administrative Agent shall not have any duties or obligations except those expressly set forth  herein  and  in  the  other  Loan  Documents,  and  its  duties  hereunder  shall  be  administrative  in  nature.   Without limiting the generality of the foregoing, the Administrative Agent and its Related Parties:               (a)   shall not be subject to any fiduciary or other implied duties, regardless of whether        a Default has occurred and is continuing;               (b)   shall  not  have  any  duty  to  take  any  discretionary  action  or  exercise  any        discretionary powers, except discretionary rights and powers expressly contemplated hereby or by        the  other Loan  Documents that  the  Administrative  Agent  is required  to exercise  as  directed  in        writing by the Required Lenders (or such other number or percentage of the Lenders as shall be        expressly provided for herein or in the other Loan Documents); provided that the Administrative        Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,        may expose the Administrative Agent to liability or that is contrary to any Loan Document or        applicable Law, including for the avoidance of doubt any action that may be in violation of the        automatic  stay  under  any  Debtor  Relief  Law  or  that  may  effect  a  forfeiture,  modification  or        termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and               (c)   shall not, except as expressly set forth herein and in the other Loan Documents,        have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any        information relating to any Loan 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.         Neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken  or not taken by the Administrative Agent under or in connection with this Agreement or any other Loan  Document or the transactions contemplated hereby or thereby (i) with the consent or at the request of the  Required  Lenders (or  such  other number  or  percentage  of  the  Lenders as shall be  necessary,  or as the  Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided  in Sections 11.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as  determined  by  a  court  of  competent  jurisdiction  by  final  and  nonappealable  judgment.   The  Administrative  Agent  shall  be  deemed  not  to  have  knowledge  of  any  Default  unless  and  until  notice  describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or the  L/C Issuer.         Neither the Administrative Agent nor any of its Related Parties have any duty or obligation to any  Lender  or  participant  or  any  other  Person  to  ascertain  or  inquire  into  (i)  any  statement,  warranty  or  representation  made  in  or  in  connection  with  this  Agreement  or  any  other  Loan  Document,  (ii)  the  contents of any certificate, report or other document delivered hereunder or thereunder or in connection  herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other  terms  or  conditions  set  forth  herein  or  therein  or  the  occurrence  of  any  Default,  (iv)  the  validity,  enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other                                         96  CHAR1\1593539v8  





 






agreement,  instrument  or document,  or the  creation, perfection or priority of any  Lien  purported to  be  created  by  the  Collateral  Documents,  (v)  the  value  or  the  sufficiency  of  any  Collateral,  or  (vi)  the  satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of  items expressly required to be delivered to the Administrative Agent.         9.04  Reliance by Administrative Agent.         The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying  and shall not incur any liability for relying upon, any notice, request, certificate, communication, consent,  statement, instrument, document or other writing (including any electronic message, Internet or intranet  website  posting  or  other  distribution)  believed  by  it  to  be  genuine  and  to  have  been  signed,  sent  or  otherwise  authenticated  by  the  proper  Person.   The  Administrative  Agent  also  may  rely  upon  any  statement made to it orally or by telephone and believed by it to have been made by the proper Person,  and shall be fully protected in relying and shall not incur any liability for relying thereon.  In determining  compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or  increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C  Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the  L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or  the L/C Issuer prior to the making of such Loan or the issuance, extension, renewal or increase of such  Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the  Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any  action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.         9.05  Delegation of Duties.         The Administrative Agent may perform any and all of its duties and exercise its rights and powers  hereunder or under any other Loan Document by or through any one or more sub agents appointed by the  Administrative Agent.  The Administrative Agent and any such sub agent may perform any and all of its  duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory  provisions  of  this  Article  shall  apply  to  any  such  sub  agent  and  to  the  Related  Parties  of  the  Administrative Agent and any such sub agent, and shall apply to their respective activities in connection  with  the  syndication  of  the  credit  facilities  provided  for  herein  as  well  as  activities  as  Administrative  Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub- agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable  judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection  of such sub-agents.         9.06  Resignation of Administrative Agent.               (a)   The Administrative Agent may at any time give notice of its resignation to the        Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of resignation, the        Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably        withheld or delayed), so long as no Event of Default has occurred and is continuing, to appoint a        successor, which shall be a bank with an office in the United States, or an Affiliate of any such        bank with an office in the United States.  If no such successor shall have been so appointed by the        Required  Lenders  and  shall  have  accepted  such  appointment  within  thirty  (30)  days  after  the        retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed        by  the  Required  Lenders)  (the  “Resignation  Effective  Date”),  then  the  retiring  Administrative        Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C  Issuer, and in        consultation  with  the  Borrower,  appoint  a  successor  Administrative  Agent  meeting  the        qualifications set forth above; provided that in no event shall any such successor Administrative                                        97  CHAR1\1593539v8  





 






      Agent be a Defaulting Lender.  Whether or not a successor has been appointed, such resignation        shall become effective in accordance with such notice on the Resignation Effective Date.               (b)   If the Person serving as Administrative Agent is a Defaulting Lender pursuant to        clause  (d)  of  the  definition  thereof,  the  Required  Lenders  may,  to  the  extent  permitted  by        applicable  Law, by  notice  in  writing  to  the  Borrower  and  such  Person  remove  such  Person  as        Administrative Agent and, with the consent of the Borrower (not to be unreasonably withheld or        delayed), so long as no Event of Default has occurred and is continuing, appoint a successor.  If        no such successor shall have been so appointed by the Required Lenders and shall have accepted        such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required        Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective        in accordance with such notice on the Removal Effective Date.               (c)   With effect from the Resignation Effective Date or the Removal Effective Date        (as  applicable)  (i)  the  retiring  or  removed  Administrative  Agent  shall  be  discharged  from  its        duties and obligations hereunder and under the other Loan Documents (except that in the case of        any  collateral  security  held  by  the  Administrative  Agent  on  behalf  of  the  Lenders  or  the  L/C        Issuer  under  any  of  the  Loan  Documents,  the  retiring  or  removed  Administrative  Agent  shall        continue to hold such collateral security until such time as a successor Administrative Agent is        appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring        or removed Administrative Agent, all payments, communications and determinations provided to        be made by, to or through the Administrative Agent shall instead be made by or to each Lender        and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor        Administrative Agent as provided for above.  Upon the acceptance of a successor’s appointment        as Administrative Agent hereunder, such successor shall succeed to and become vested with all of        the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other        than  as  provided  in  Section  3.01(g)  and  other  than  any  rights  to  indemnity  payments  or  other        amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective        Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative        Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan        Documents  (if  not  already  discharged  therefrom  as  provided  above  in  this  Section).   The  fees        payable by the Borrower to a successor Administrative Agent shall be the same as those payable        to its predecessor unless otherwise agreed between the Borrower and such successor.  After the        retiring or removed Administrative Agent’s resignation or removal hereunder and under the other        Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the        benefit  of  such  retiring  or  removed  Administrative  Agent,  its  sub  agents  and  their  respective        Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while the        retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such        resignation or removal for as long as any of them continues to act in any capacity hereunder or        under the other Loan Documents, including (A) acting as collateral agent or otherwise holding        any collateral security on behalf of any of the Lenders and (B) in respect of any actions taken in        connection with transferring the agency to any successor Administrative Agent.               (d)   Any  resignation  by  or  removal  of  Bank  of  America  as  Administrative  Agent        pursuant to this Section shall also constitute its resignation as L/C Issuer and Swingline Lender.         If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and        duties  of  the  L/C  Issuer  hereunder  with  respect  to  all  Letters  of  Credit  outstanding  as  of  the        effective  date  of  its  resignation  as  L/C  Issuer  and  all  L/C  Obligations  with  respect  thereto,        including the right to require the Lenders to make Base Rate Loans or fund risk participations in        Unreimbursed Amounts pursuant to Section 2.03(c).  If Bank of America resigns as Swingline        Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect                                        98  CHAR1\1593539v8  





 






      to  Swingline  Loans  made  by  it  and  outstanding  as  of  the  effective  date  of  such  resignation,        including the right to require the Lenders to make Base Rate Loans or fund risk participations in        outstanding Swingline Loans pursuant to Section 2.04(c).  Upon the appointment by the Borrower        of a successor L/C Issuer or Swingline Lender hereunder (which successor shall in all cases be a        Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested        with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender,        as applicable, (ii) the retiring L/C Issuer and Swingline Lender shall be discharged from all of        their respective duties and obligations hereunder or under the other Loan Documents and (iii) the        successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,        outstanding at the time of such succession or make other arrangements satisfactory to Bank of        America to effectively assume the obligations of Bank of America with respect to such Letters of        Credit.         9.07  Non-Reliance on Administrative Agent and Other Lenders.         Each  Lender  and  the  L/C  Issuer  acknowledges  that  it  has,  independently  and  without  reliance  upon  the  Administrative  Agent  or any  other  Lender or  any  of  their  Related  Parties and  based  on such  documents and information as it has deemed appropriate, made its own credit analysis and decision to  enter into this Agreement.  Each Lender and the L/C Issuer also acknowledges that it will, independently  and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties  and based on such documents and information as it shall from time to time deem appropriate, continue to  make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan  Document or any related agreement or any document furnished hereunder or thereunder.         9.08  No Other Duties; Etc.         Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication  agents,  documentation  agents  or  co-agents  shall  have  any  powers,  duties  or  responsibilities  under  this  Agreement  or  any  of  the  other  Loan  Documents,  except  in  its  capacity,  as  applicable,  as  the  Administrative Agent, a Lender or the L/C Issuer hereunder.         9.09  Administrative Agent May File Proofs of Claim; Credit Bidding.         In  case  of the  pendency  of  any  proceeding  under  any  Debtor  Relief  Law  or any  other judicial  proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of  any  Loan  or  L/C  Obligation  shall  then  be  due  and  payable  as  herein  expressed  or  by  declaration  or  otherwise  and  irrespective  of  whether  the  Administrative  Agent  shall  have  made  any  demand  on  the  Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:               (a)   to file and prove a claim for the whole amount of the principal and interest owing        and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and        unpaid and to file such other documents as may be necessary or advisable in order to have the        claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the        reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer        and the Administrative Agent and their respective agents and counsel and all other amounts due        the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h), 2.03(i), 2.09        and 11.04) allowed in such judicial proceeding; and               (b)   to collect and receive any monies or other property payable or deliverable on any        such claims and to distribute the same;                                         99  CHAR1\1593539v8  





 






and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the  Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such  payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due  for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and  its  agents  and  counsel,  and  any  other  amounts  due  the  Administrative  Agent  under  Sections  2.09  and  11.04.         Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or  consent  to  or  accept  or  adopt  on  behalf  of  any  Lender  or  the  L/C  Issuer  any  plan  of  reorganization,  arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C  Issuer  to  authorize  the Administrative  Agent to  vote  in  respect  of the claim  of  any  Lender  or the  L/C  Issuer in any such proceeding.         The  holders  of  the  Obligations  hereby  irrevocably  authorize  the  Administrative  Agent,  at  the  direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting  some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of  foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition  vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the  Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy  Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject  or (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the  consent  or  at  the  direction  of)  the  Administrative  Agent  (whether  by  judicial  action  or  otherwise)  in  accordance  with  any  applicable  Law.   In  connection  with  any  such  credit  bid  and  purchase,  the  Obligations owed to the holders thereof shall be entitled to be, and shall be, credit bid on a ratable basis  (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the  acquired  assets  on  a  ratable  basis  that  would  vest  upon  the  liquidation  of  such  claims  in  an  amount  proportional to the liquidated portion of the contingent claim amount used in allocating the contingent  interests)  in  the  asset  or  assets  so  purchased  (or  in  the  Equity  Interests  or  debt  instruments  of  the  acquisition vehicle or vehicles that are used to consummate such purchase).  In connection with any such  bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a  bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles; provided  that  any  actions  by  the  Administrative  Agent  with  respect  to  such  acquisition  vehicle  or  vehicles,  including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly,  by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving  effect to the limitations on actions by the Required Lenders contained in clauses (a)(i) through (a)(vii) of  Section 11.01, and (iii) to the extent that Obligations that are assigned to an acquisition vehicle are not  used to acquire Collateral for any reason (as a result of another bid being higher or better, because the  amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the  acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro  rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the  Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the  need for any Lender or any acquisition vehicle to take any further action.         9.10  Collateral and Guaranty Matters.         Without limiting the provisions of Section 9.09, each of the Lenders (including in its capacities as  a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize  the Administrative Agent, at its option and in its discretion,                                         100  CHAR1\1593539v8  





 






            (a)   to  release  any  Lien  on  any  property  granted  to  or  held  by  the  Administrative        Agent  under  any  Loan  Document  (i)  upon  the  Facility  Termination  Date,  (ii)  that  is  sold  or        otherwise  disposed  of  as  part  of  or  in  connection  with  any  sale  or  other  disposition  permitted        hereunder  or  under  any  other  Loan  Document  or  any  Recovery  Event,  or  (iii)  as  approved  in        accordance with Section 11.01;               (b)   to subordinate any Lien on any property granted to or held by the Administrative        Agent under any Loan Document to the holder of any Lien on such property that is permitted by        Section 7.01(i); and               (c)   to release any Guarantor from its obligations under the Guaranty if such Person        ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.         Upon  request  by  the  Administrative  Agent  at  any  time,  the  Required  Lenders  will  confirm  in  writing the Administrative Agent’s authority to release or subordinate its interest in particular types or  items of property, or to release any Guarantor from its obligations under the Guaranty, pursuant to this  Section 9.10.         The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into  any  representation  or  warranty  regarding  the  existence,  value  or  collectability  of  the  Collateral,  the  existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by  any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the  Lenders for any failure to monitor or maintain any portion of the Collateral.         9.11  Secured Cash Management Agreements and Secured Hedge Agreements.         Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that  obtains the benefit of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof or  any Collateral Document shall have any right to notice of any action or to consent to, direct or object to  any  action  hereunder  or  under  any  other  Loan  Document  or  otherwise  in  respect  of  the  Collateral  (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment,  waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than  in  its  capacity  as  a  Lender  and,  in  such  case,  only  to  the  extent  expressly  provided  in  the  Loan  Documents.  Notwithstanding any other provision of this Article IX to the contrary, the Administrative  Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been  made  with  respect  to,  Obligations  arising  under  Secured  Cash  Management  Agreements  and  Secured  Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent  has  received  a  Secured  Party  Designation  Notice  of  such  Obligations,  together  with  such  supporting  documentation as the Administrative Agent may request, from the applicable Cash Management Bank or  Hedge Bank, as the case may be.  The Administrative Agent shall not be required to verify the payment  of,  or  that  other  satisfactory  arrangements  have  been  made  with  respect  to,  Obligations  arising  under  Secured  Cash  Management  Agreements  and  Secured  Hedge  Agreements  in  the  case  of  the  Facility  Termination Date.         9.12  ERISA Matters.               (a)   Each  Lender  (x)  represents  and  warrants, as  of  the date  such  Person  became a        Lender  party  hereto,  to,  and  (y)  covenants,  from  the  date  such  Person  became  a  Lender  party        hereto  to  the  date  such  Person  ceases  being  a  Lender  party  hereto,  for  the  benefit  of,  the        Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance                                        101  CHAR1\1593539v8  





 






      of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the        following is and will be true:                      (i)   such Lender is not using “plan assets” (within the meaning of 29 CFR §              2510.3-101,  as  modified  by  Section  3(42)  of  ERISA)  of  one  or  more  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.                (b)   In addition, unless subclause (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  subclause  (iv)  in  the  immediately  preceding  clause  (a),  such  Lender        further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,        and  (y)  covenants,  from  the  date  such  Person  became  a  Lender  party  hereto  to  the  date  such        Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the        Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit        of the Borrower or any other Loan Party, that:                     (i)   none  of  the  Administrative  Agent  or  the  Arrangers  or  any  of  their              respective Affiliates is a fiduciary with respect to the assets of such Lender (including in              connection  with  the  reservation  or  exercise  of  any  rights  by  the  Administrative  Agent              under  this  Agreement,  any  Loan  Document  or  any  documents  related  to  hereto  or              thereto),                     (ii)  the Person making the investment decision on behalf of such Lender with              respect to  the  entrance  into,  participation  in,  administration  of  and  performance  of  the              Loans, the Letters of Credit, the Commitments and this Agreement is independent (within                                        102  CHAR1\1593539v8  





 






            the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment              adviser, a broker-dealer or other person that holds, or has under management or control,              total  assets  of  at  least  $50  million,  in  each  case  as  described  in  29  CFR  §  2510.3-             21(c)(1)(i)(A)-(E),                     (iii) the Person making the investment decision on behalf of such Lender with              respect to  the  entrance  into,  participation  in,  administration  of  and  performance  of  the              Loans,  the  Letters  of  Credit,  the  Commitments  and  this  Agreement  is  capable  of              evaluating investment risks independently, both in general and with regard to particular              transactions and investment strategies (including in respect of the Obligations),                     (iv)  the Person making the investment decision on behalf of such Lender with              respect to  the  entrance  into,  participation  in,  administration  of  and  performance  of  the              Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under              ERISA or the Internal Revenue 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  or  the  Arrangers  or  any  their  respective  Affiliates  for  investment  advice  (as              opposed  to  other  services)  in  connection  with  the  Loans,  the  Letters  of  Credit,  the              Commitments or this Agreement.               (c)   The Administrative Agent and the Arrangers hereby inform the Lenders that each        such  Person  is  not  undertaking  to  provide  impartial  investment  advice,  or  to  give  advice  in  a        fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person        has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate        thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit,        the  Commitments  and  this  Agreement,  (ii)  may  recognize  a  gain  if  it  extended  the  Loans, the        Letters  of  Credit  or  the  Commitments  for  an  amount  less  than  the  amount  being  paid  for  an        interest  in  the  Loans,  the  Letters  of  Credit  or  the  Commitments  by  such  Lender  or  (iii)  may        receive fees or other payments in connection with the transactions contemplated hereby, the Loan        Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility        fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral        agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or        alternate  transaction  fees,  amendment  fees,  processing  fees,  term  out  premiums,  banker’s        acceptance fees, breakage or other early termination fees or fees similar to the foregoing.                                    ARTICLE X.                                    GUARANTY         10.01 The Guaranty.         Each of the Guarantors hereby jointly and severally guarantees to each Lender, the L/C Issuer and  each other holder of Obligations as hereinafter provided, as primary obligor and not as surety, the prompt  payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by  acceleration,  as  a  mandatory  cash  collateralization  or  otherwise)  strictly  in  accordance  with  the  terms  thereof.  The Guarantors hereby further agree that if any of the Obligations are not paid in full when due  (whether  at  stated  maturity,  as  a  mandatory  prepayment,  by  acceleration,  as  a  mandatory  cash  collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without                                        103  CHAR1\1593539v8  





 






any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of  any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as  a  mandatory  prepayment,  by  acceleration,  as  a  mandatory  cash  collateralization  or  otherwise)  in  accordance with the terms of such extension or renewal.         Notwithstanding  any  provision  to  the  contrary  contained  herein  or  in  any  other  of  the  Loan  Documents or the other documents relating to the Obligations, the obligations of each Guarantor under  this Agreement and the other Loan Documents shall not exceed an aggregate amount equal to the largest  amount that would not render such obligations subject to avoidance under applicable Debtor Relief Laws.         10.02 Obligations Unconditional.         The  obligations  of  the  Guarantors  under  Section  10.01  are  joint  and  several,  absolute  and  unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the  Loan Documents or other documents relating to the Obligations, or any substitution, release, impairment  or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent  permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise  constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment in full), it  being the intent of this Section 10.02 that the obligations of the Guarantors hereunder shall be absolute  and unconditional under any and all circumstances.  Each Guarantor agrees that such Guarantor shall have  no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Loan  Party  for  amounts  paid  under  this  Article  X  until  such  time  as  the  Obligations  have  been  paid  in  full  (other than contingent obligations for which no claim has been made) and the Commitments have expired  or  terminated.   Without  limiting  the  generality  of  the  foregoing,  it  is  agreed  that,  to  the  fullest  extent  permitted by Law, the occurrence of any one or more of the following shall not alter or impair the liability  of any Guarantor hereunder, which shall remain absolute and unconditional as described above:               (a)   at any time or from time to time, without notice to any Guarantor, the time for        any  performance  of  or  compliance  with  any  of  the  Obligations  shall  be  extended,  or  such        performance or compliance shall be waived;               (b)   any of the acts mentioned in any of the provisions of any of the Loan Documents        or other documents relating to the Obligations shall be done or omitted;               (c)   the  maturity  of  any  of  the  Obligations  shall  be  accelerated,  or  any  of  the        Obligations shall be modified, supplemented or amended in any respect, or any right under any of        the Loan Documents or other documents relating to the Obligations shall be waived or any other        guarantee  of  any  of  the  Obligations  or  any  security  therefor  shall  be  released,  impaired  or        exchanged in whole or in part or otherwise dealt with;               (d)   any Lien granted to, or in favor of, the Administrative Agent or any other holder        of the Obligations as security for any of the Obligations shall fail to attach or be perfected; or               (e)   any of the Obligations shall be determined to be void or voidable (including for        the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person        (including any creditor of any Guarantor).         With  respect  to  its  obligations  hereunder,  each  Guarantor  hereby  expressly  waives  diligence,  presentment,  demand  of  payment,  protest  and  all  notices  whatsoever,  and  any  requirement  that  the  Administrative  Agent  or  any  other  holder  of  the  Obligations  exhaust  any  right,  power  or  remedy  or  proceed  against  any  Person  under  any  of  the  Loan  Documents  or  any  other  document  relating  to  the                                        104  CHAR1\1593539v8  





 






Obligations,  or  against  any  other  Person  under  any  other  guarantee  of,  or  security  for,  any  of  the  Obligations.         10.03 Reinstatement.         The obligations of each Guarantor under this Article X shall be automatically reinstated if and to  the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is  rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of  any Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify the Administrative  Agent  and  each  other  holder  of  the  Obligations  on  demand  for  all  reasonable  costs  and  expenses  (including the reasonable fees, charges and disbursements of outside counsel to the extent required to be  reimbursed  pursuant  to  Section  11.04)  incurred  by  the  Administrative  Agent  or  such  holder  of  the  Obligations  in  connection  with  such  rescission  or  restoration,  including  any  such  costs  and  expenses  incurred in defending against any claim alleging that such payment constituted a preference, fraudulent  transfer or similar payment under any Debtor Relief Law.         10.04 Certain Additional Waivers.         Each  Guarantor  agrees  that  such  Guarantor  shall  have  no  right  of  recourse  to  security  for  the  Obligations, except through the exercise of rights of subrogation pursuant to Section 10.02 and through  the exercise of rights of contribution pursuant to Section 10.06.         10.05 Remedies.         The Guarantors agree that, to the fullest extent permitted by Law, as between the Guarantors, on  the one hand, and the Administrative Agent and the other holders of the Obligations, on the other hand,  the Obligations may be declared to be forthwith due and payable as specified in Section 8.02 (and shall be  deemed to have become automatically due and payable in the circumstances specified in Section 8.02) for  purposes  of  Section  10.01  notwithstanding  any  stay,  injunction  or  other  prohibition  preventing  such  declaration (or preventing the Obligations from becoming automatically due and payable) as against any  other Person and that, in the event of such declaration (or the Obligations being deemed to have become  automatically due and payable), the Obligations (whether or not due and payable by any other Person)  shall forthwith become due and payable by the Guarantors for purposes of Section 10.01.  The Guarantors  acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the  Collateral Documents and that the holders of the Obligations may exercise their remedies thereunder in  accordance with the terms thereof.         10.06 Rights of Contribution.         The Guarantors hereby agree as among themselves that, if any Guarantor shall make an Excess  Payment (as defined below), such Guarantor shall have a right of contribution from each other Guarantor  in  an  amount  equal  to  such  other  Guarantor’s  Contribution  Share  (as  defined  below)  of  such  Excess  Payment.  The payment obligations of any Guarantor under this Section 10.06 shall be subordinate and  subject in right of payment to the Obligations until such time as the Obligations have been paid-in-full  (other  than  contingent  obligations  for  which  no  claim  has  been  made)  and  the  Commitments  have  terminated, and none of the Guarantors shall exercise any right or remedy under this Section 10.06 against  any other Guarantor until such Obligations have been paid-in-full (other than contingent obligations for  which  no  claim  has  been made)  and  the  Commitments  have terminated.  For  purposes of  this  Section  10.06, (a) “Excess Payment” shall mean the amount paid by any Guarantor in excess of its Ratable Share  of  any  Obligations;  (b)  “Ratable  Share”  shall  mean,  for  any  Guarantor  in  respect  of  any  payment  of  Obligations, the ratio (expressed as a percentage) as of the date of such payment of Obligations of (i) the                                        105  CHAR1\1593539v8  





 






amount by which the aggregate present fair salable value of all of its assets and properties exceeds the  amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and  unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by  which the aggregate present fair salable value of all assets and other properties of all of the Loan Parties  exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and  unliquidated liabilities, but excluding the obligations of the Loan Parties hereunder) of the Loan Parties;  provided, however, that, for purposes of calculating the Ratable Shares of the Guarantors in respect of any  payment  of  Obligations,  any  Guarantor  that  became  a  Guarantor  subsequent  to  the  date  of  any  such  payment  shall  be  deemed  to  have  been  a  Guarantor  on  the  date  of  such  payment  and  the  financial  information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for  such  Guarantor  in  connection  with  such  payment;  and  (c)  “Contribution  Share”  shall  mean,  for  any  Guarantor  in  respect  of  any  Excess  Payment  made  by  any  other  Guarantor,  the  ratio  (expressed  as  a  percentage) as of the date of such Excess Payment of (i) the amount by which the aggregate present fair  salable  value  of  all  of  its  assets  and  properties exceeds  the  amount  of  all  debts  and  liabilities  of  such  Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the  obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable  value of all assets and other properties of the Loan Parties other than the maker of such Excess Payment  exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and  unliquidated liabilities, but excluding the obligations of the Loan Parties) of the Loan Parties other than  the maker of such Excess Payment; provided, however, that, for purposes of calculating the Contribution  Shares  of  the  Guarantors  in  respect  of  any  Excess  Payment,  any  Guarantor  that  became  a  Guarantor  subsequent to the date of any such Excess Payment shall be deemed to have been a Guarantor on the date  of such Excess Payment and the financial information for such Guarantor as of the date such Guarantor  became a Guarantor shall be utilized for such Guarantor in connection with such Excess Payment.  This  Section  10.06  shall  not  be  deemed  to  affect  any  right  of  subrogation,  indemnity,  reimbursement  or  contribution that any Guarantor may have under Law against the Borrower in respect of any payment of  Obligations.         10.07 Guarantee of Payment; Continuing Guarantee.         The guarantee in this Article X is a guaranty of payment and not of collection, is a continuing  guarantee, and shall apply to the Obligations whenever arising.         10.08 Keepwell.         Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty in this Article X by  any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (a  “Specified  Loan  Party”)  or  the  grant  of  a  security  interest  under  the  Loan  Documents  by  any  such  Specified  Loan  Party,  in  either  case,  becomes  effective  with  respect  to  any  Swap  Obligation,  hereby  jointly  and  severally,  absolutely,  unconditionally  and  irrevocably  undertakes  to  provide  such  funds  or  other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by  such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in  respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that  can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings  under this Article X voidable under applicable Debtor Relief Laws, and not for any greater amount).  The  obligations  and  undertakings  of  each  Qualified  ECP  Guarantor  under  this  Section  shall  remain  in  full  force and effect until the Obligations have been indefeasibly paid and performed in full.  Each Loan Party  intends this Section to constitute, and this Section shall be deemed to constitute, a “keepwell, support, or  other  agreement”  for  the  benefit  of  each  Specified  Loan  Party  for  all  purposes  of  the  Commodity  Exchange Act.                                        106  CHAR1\1593539v8  





 






                                 ARTICLE XI.                                 MISCELLANEOUS         11.01 Amendments, Etc.         Except  as  provided  in  Section  2.16  with  respect  to  an  Incremental  Facility  Amendment,  no  amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to  any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required  Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower or  the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each  such waiver or consent shall be effective only in the specific instance and for the specific purpose for  which given; provided, however, that               (a)   no such amendment, waiver or consent shall:                     (i)   extend  or  increase  the  Commitment  of  any  Lender  (or  reinstate  any              Commitment  terminated  pursuant  to  Section  8.02)  without  the  written  consent  of  such              Lender (it being understood and agreed that a waiver of any condition precedent set forth              in  Section  4.02  or  of  any  Default,  Event  of  Default  or  a  mandatory  reduction  in              Commitments is not considered an extension or increase in Commitments of any Lender);                     (ii)  postpone any date fixed by this Agreement or any other Loan Document              for any payment (excluding mandatory prepayments) of principal, interest, fees or other              amounts  due  to  the  Lenders  (or  any  of  them)  or  any  scheduled  reduction  of  the              Commitments hereunder or under any other Loan Document without the written consent              of  each  Lender  entitled  to  receive  such  payment  or  whose  Commitments  are  to  be              reduced;                     (iii) reduce  the  principal  of,  or  the  rate  of  interest  specified  herein  on,  any              Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this Section 11.01)              any fees or other amounts payable hereunder or under any other Loan Document without              the written consent of each Lender entitled to receive such amount; provided, however,              that  (A)  only  the  consent  of  the  Required  Lenders  shall  be  necessary  to  amend  the              definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or              Letter of Credit Fees at the Default Rate and (B) an amendment to any financial covenant              hereunder (or any defined term used therein) even if the effect of such amendment would              be  to  reduce  the  rate  of  interest  on  any  Loan  or  L/C  Borrowing  or  to  reduce  any  fee              payable hereunder shall not be deemed to be a reduction of the principal of, or the rate of              interest specified herein on, any Loan or L/C Borrowing, or any fees or other amounts              payable hereunder or under any other Loan Document;                     (iv)  change Section 8.03 in a manner that would alter the pro rata sharing of              payments  required  thereby  without  the  written  consent  of  each  Lender  directly  and              adversely affected thereby;                     (v)   change  any  provision  of  this  Section  11.01(a)  or  the  definition  of              “Required  Lenders”  without  the  written consent of  each  Lender  directly and  adversely              affected thereby;                                         107  CHAR1\1593539v8  





 






                  (vi)  release  all  or  substantially  all  of  the  Collateral  without  the  written              consent of each Lender whose Obligations are secured by such Collateral;                     (vii) release the Borrower without the consent of each Lender, or, except in              connection  with  a  transaction  permitted  under  Section  7.04  or  Section  7.05,  all  or              substantially all of the value of the Guaranty without the written consent of each Lender              whose Obligations are guarantied thereby, except to the extent such release is permitted              pursuant to Section 9.10 (in which case such release may be made by the Administrative              Agent acting alone); or               (b)   unless  also  signed  by  the  L/C  Issuer,  no  amendment,  waiver  or  consent  shall        affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating        to any Letter of Credit issued or to be issued by it;               (c)   unless also signed by the Swingline Lender, no amendment, waiver or consent        shall affect the rights or duties of the Swingline Lender under this Agreement; and               (d)   unless  also  signed  by  the  Administrative  Agent,  no  amendment,  waiver  or        consent shall affect the rights or duties of the Administrative Agent under this Agreement or any        other Loan Document;   provided,  further,  that  notwithstanding  anything  to  the  contrary  herein,  (i)  the  Fee  Letter  may  be  amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii)  each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects  the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code  of  the  United  States  supersedes  the  unanimous  consent  provisions  set  forth  herein,  (iii)  the  Required  Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a  bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders, (iv)  Incremental Facility Amendments may be effected in accordance with Section 2.16 and (v) (A) the L/C  Commitment  reflected  on  Schedule  2.03  may  be  amended  from  time  to  time  by  the  Borrower,  the  Administrative Agent and the L/C Issuer, to reflect the L/C Commitment of the L/C Issuer in effect from  time to time and (B) the Swingline Commitment reflected on Schedule 2.04 may be amended from time  to  time  by  the  Borrower,  the  Administrative  Agent  and  the  Swingline  Lender  to  reflect the  Swingline  Commitment of the Swingline Lender in effect from time to time.   No Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent  hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders  or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting  Lenders), except that (x) the Commitment of such Defaulting Lender may not be increased or extended  without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent  of all Lenders or each affected Lender that by its terms affects such Defaulting Lender disproportionately  adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.   Notwithstanding any provision herein to the contrary, this Agreement may be amended with the written  consent of the Required Lenders, the Administrative Agent and the Loan Parties (i) to add one or more  additional  revolving  credit  facilities  to  this  Agreement  and  to  permit  the  extensions  of  credit  and  all  related obligations and liabilities arising in connection therewith from time to time outstanding to share  ratably (or on a basis subordinated to the existing facilities hereunder) in the benefits of this Agreement  and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect  of  the  existing  facilities  hereunder,  and  (ii)  in  connection  with  the  foregoing,  to  permit,  as  deemed  appropriate by the Administrative Agent and approved by the Required Lenders, the Lenders providing                                        108  CHAR1\1593539v8  





 






such  additional  revolving  credit  facilities  to  participate  in  any  required  vote  or  action  required  to  be  approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder.  For  the avoidance of doubt, it is understood and agreed that no existing Lender shall be required to participate  in an additional revolving credit facility or provide an additional revolving commitment.   Notwithstanding anything to the contrary herein, this Agreement may be amended and restated without  the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon  giving  effect  to  such  amendment  and  restatement,  such  Lender  shall  no  longer  be  a  party  to  this  Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, such  Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all  principal, interest and other amounts owing to it or accrued for its account under this Agreement.   Notwithstanding any provision herein to the contrary (x) the Administrative Agent and the Borrower may  amend,  modify  or  supplement  this  Agreement  or  any  other  Loan  Document  to  cure  or  correct  administrative  errors  or  omissions,  any  ambiguity,  omission,  defect  or  inconsistency  or  to  effect  administrative changes, and such amendment shall become effective without any further consent of any  other party to such Loan Document so long as (i) such amendment, modification or supplement does not  adversely affect the rights of any Lender or other holder of Obligations in any material respect and (ii) the  Lenders  shall  have  received  at  least  five  (5)  Business  Days’  prior  written  notice  thereof  and  the  Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to  the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such  amendment and (y) the Administrative Agent and the Borrower may make amendments contemplated by  Section 3.07.         11.02 Notices; Effectiveness; Electronic Communications.                (a)   Notices  Generally.   Except  in  the  case  of  notices  and  other  communications        expressly permitted to be given by telephone (and except as provided in subsection (b) below), all        notices and other communications provided for herein shall be in writing and shall be delivered        by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as        follows, and all notices and other communications expressly permitted hereunder to be given by        telephone shall be made to the applicable telephone number, as follows:                     (i)   if  to  any  Loan  Party,  the  Administrative  Agent,  the  L/C  Issuer  or  the              Swingline Lender, to the address, facsimile number, e-mail address or telephone number              specified for such Person on Schedule 11.02; and                     (ii)  if to any other Lender, to the address, facsimile number, e-mail address              or  telephone  number  specified  in  its  Administrative  Questionnaire  (including,  as              appropriate,  notices  delivered  solely  to  the  Person  designated  by  a  Lender  on  its              Administrative Questionnaire then in effect for the delivery of notices that may contain              material non-public information relating to the Borrower).         Notices  and  other  communications  sent  by  hand  or  overnight  courier  service,  or  mailed  by  certified  or  registered  mail,  shall  be  deemed  to  have  been  given  when  received;  notices  and  other  communications sent by facsimile shall be deemed to have been given when sent (except that, if not given  during  normal  business  hours for  the  recipient, shall  be  deemed  to  have  been  given  at  the  opening  of  business  on  the  next  Business  Day  for  the  recipient).   Notices  and  other  communications  delivered  through electronic communications to the extent provided in subsection (b) below, shall be effective as  provided in such subsection (b).                                        109  CHAR1\1593539v8  





 






            (b)   Electronic Communications.  Notices and other communications to the Lenders        and  the  L/C  Issuer  hereunder  may  be  delivered  or  furnished  by  electronic  communication        (including  e  mail,  FpML  messaging,  and  Internet  or  intranet  websites)  pursuant  to  procedures        approved by the Administrative Agent; provided that the foregoing shall not apply to notices to        any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable,        has notified the Administrative Agent that it is incapable of receiving notices under such Article        by electronic communication.  The Administrative Agent, the Swingline Lender, the L/C Issuer or        the Borrower may each, in its discretion, agree to accept notices and other communications to it        hereunder  by  electronic  communications  pursuant  to  procedures  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) and (ii) notices or communications posted to an Internet or intranet website  shall  be  deemed  received  upon  the  deemed  receipt  by  the  intended  recipient  at  its  e-mail  address  as  described in the foregoing clause (i) of notification that such notice or communication is available and  identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or  other communication is not sent during the normal business hours of the recipient, such notice, email or  communication shall be deemed to have been sent at the opening of business on the next business day for  the recipient.               (c)   The  Platform.   THE  PLATFORM  IS  PROVIDED  “AS  IS”  AND  “AS        AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE        ACCURACY  OR  COMPLETENESS  OF  THE  BORROWER  MATERIALS  OR  THE        ADEQUACY  OF  THE  PLATFORM,  AND  EXPRESSLY  DISCLAIM  LIABILITY  FOR        ERRORS  IN  OR  OMISSIONS  FROM  THE  BORROWER  MATERIALS.   NO  WARRANTY        OF  ANY KIND, EXPRESS,  IMPLIED  OR  STATUTORY,  INCLUDING  ANY WARRANTY        OF  MERCHANTABILITY,  FITNESS  FOR  A  PARTICULAR  PURPOSE,  NON-       INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER        CODE  DEFECTS,  IS  MADE  BY  ANY  AGENT  PARTY  IN  CONNECTION  WITH  THE        BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent        or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower,        any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses        of  any  kind  (whether  in  tort,  contract  or  otherwise)  arising  out  of  any  Loan  Party’s  or  the        Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any        other electronic platform or electronic messaging service, or through the Internet.               (d)   Change of Address, Etc.  Each of the Borrower, the Administrative Agent, the        L/C Issuer and the Swingline Lender may change its address, facsimile or telephone number for        notices and  other  communications hereunder  by  notice  to the  other  parties  hereto.   Each  other        Lender  may  change  its  address,  facsimile  or  telephone  number  for  notices  and  other        communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer        and the Swingline Lender.  In addition, each Lender agrees to notify the Administrative Agent        from time to time to ensure that the Administrative Agent has on record (i) an effective address,        contact name, telephone number, facsimile number and e-mail address to which notices and other        communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore,        each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to        at  all  times  have  selected the  “Private Side  Information”  or  similar  designation  on  the  content        declaration  screen  of  the  Platform  in  order  to  enable  such  Public  Lender  or  its  delegate,  in        accordance  with  such  Public  Lender’s  compliance  procedures  and  applicable  Law,  including                                       110  CHAR1\1593539v8  





 






      United States Federal and state securities Laws, to make reference to Borrower Materials that are        not made available through the “Public Side Information” portion of the Platform and that may        contain material non-public information with respect to the Borrower or its securities for purposes        of United States Federal or state securities Laws.               (e)   Reliance by Administrative Agent, L/C Issuer and Lenders.  The Administrative        Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including        telephonic or electronic notices, Loan Notices, Letter of Credit Applications and Swingline Loan        Notices) purportedly given by or on behalf of any Loan Party even if (i) such notices were not        made  in  a  manner specified  herein,  were incomplete or  were not  preceded or followed  by  any        other  form  of  notice  specified  herein, or  (ii)  the  terms  thereof, as  understood  by  the  recipient,        varied  from  any  confirmation  thereof.   The  Loan  Parties  shall  indemnify  the  Administrative        Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs,        expenses  and  liabilities  resulting  from  the  reliance  by  such  Person  on  each  notice  purportedly        given  by  or  on  behalf  of  a  Loan  Party.   All  telephonic  notices  to  and  other  telephonic        communications  with the Administrative  Agent  may  be recorded  by the  Administrative  Agent,        and each of the parties hereto hereby consents to such recording.         11.03 No Waiver; Cumulative Remedies; Enforcement.         No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by  any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan  Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,  power or privilege hereunder or under any other Loan Document (including the imposition of the Default  Rate) preclude any other or further exercise thereof or the exercise of any other right, remedy, power or  privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other  Loan Document are cumulative and not exclusive of any rights, remedies, powers and privileges provided  by Law.         Notwithstanding anything to the contrary contained herein or in any other Loan Document, the  authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan  Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection  with  such  enforcement  shall  be  instituted  and  maintained  exclusively  by,  the  Administrative  Agent  in  accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided, however,  that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the  rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and  under the other Loan Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights  and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case  may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in  accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs  of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative  to  any  Loan  Party  under any Debtor  Relief Law;  and  provided, further, that if  at  any  time  there is no  Person  acting  as  Administrative  Agent  hereunder  and  under  the  other  Loan  Documents,  then  (i)  the  Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section  8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and  subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and  remedies available to it and as authorized by the Required Lenders.         11.04 Expenses; Indemnity; Damage Waiver.                                           111  CHAR1\1593539v8  





 






            (a)   Costs and Expenses.  The Loan Parties shall pay (i) all reasonable out of pocket        expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,        charges  and  disbursements  of  counsel  for  the  Administrative  Agent)  in  connection  with  the        syndication  of  the  credit  facilities  provided  for  herein,  the  preparation,  negotiation,  execution,        delivery  and  administration  of  this  Agreement  and  the  other  Loan  Documents  or  any        amendments,  modifications  or  waivers  of  the  provisions  hereof  or  thereof  (whether  or  not  the        transactions  contemplated  hereby  or  thereby  shall  be  consummated),  (ii)  all  reasonable  out  of        pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal        or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out of        pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including        the  reasonable  fees,  charges  and  disbursements  of  one  outside  counsel  for  the  Administrative        Agent, the Lenders and the L/C Issuer collectively and, if reasonably necessary, one local outside        counsel for the Administrative Agent, the Lenders and the L/C Issuer collectively in each relevant        jurisdiction  unless  the  representation  of  one  or  more  Lenders  by  one  counsel  would  be        inappropriate due to the existence of an actual or potential conflict of interest, in which case the        Loan Parties shall also be required to reimburse the reasonable fees, charges and disbursements of        one  additional  counsel  for  each  such  affected  Lender),  in  connection  with  the  enforcement  or        protection  of  its  rights (A) in  connection  with this  Agreement  and  the other  Loan  Documents,        including its rights under this Section, or (B) in connection with the Loans made or Letters of        Credit issued hereunder, including all such out of pocket expenses incurred during any workout,        restructuring or negotiations in respect of such Loans or Letters of Credit.               (b)   Indemnification  by  the  Loan  Parties.   The  Loan  Parties  shall  indemnify  the        Administrative  Agent  (and  any  sub-agent  thereof),  each  Lender  and  the  L/C  Issuer,  and  each        Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)        against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities,        penalties and reasonable related expenses (including the fees, charges and disbursements of one        outside counsel for all Indemnitees collectively and, if reasonably necessary, one local counsel        for all Indemnitees collectively in each relevant jurisdiction and special counsel and, in the event        of  any  actual  or  potential  conflict  of interest, one  additional  counsel  for  each  such  Indemnitee        subject to such conflict), and shall indemnify and hold harmless each Indemnitee from all fees        and  time  charges  and  disbursements  for  attorneys  who  may  be  employees  of  any  Indemnitee,        incurred  by  any  Indemnitee  or  asserted  against  any  Indemnitee  by  any  Person  (including  any        Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this        Agreement, any other Loan Document or any agreement or instrument contemplated hereby or        thereby,  the  performance  by  the  parties  hereto  of  their  respective  obligations  hereunder  or        thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case        of  the  Administrative  Agent  (and  any  sub-agent  thereof)  and  its  Related  Parties  only,  the        administration  of  this  Agreement  and  the  other  Loan  Documents  (including  in  respect  of  any        matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of        the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment        under  a  Letter  of  Credit  if  the  documents  presented  in  connection  with  such  demand  do  not        strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or        release of Hazardous Materials on or from any property owned or operated by a Loan Party or        any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any        of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding        relating  to  any  of  the  foregoing,  whether  based  on  contract,  tort  or  any  other  theory,  whether        brought by  a  third party  or  by  any  Loan  Party, and regardless of  whether  any Indemnitee is a        party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the        extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a        court of competent jurisdiction by final and nonappealable judgment to have resulted from the                                       112  CHAR1\1593539v8  





 






      gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by any        Loan  Party  against  an  Indemnitee  for  breach  in  bad  faith  of  such  Indemnitee’s  obligations        hereunder  or  under  any  other  Loan  Document,  if  such  Loan  Party  has  obtained  a  final  and        nonappealable  judgment  in  its  favor  on  such  claim  as  determined  by  a  court  of  competent        jurisdiction or (z) arise from a dispute solely among Indemnitees not relating to or in connection        with  acts  or  omissions  by  the  Borrower  or  any  Subsidiary  (other  than  a  claim  brought  by  an        Indemnitee against the Administrative Agent or an Arranger, in which case such indemnity shall        apply  with  respect  to  the  Administrative  Agent  or  such  Arranger  to  the  extent  otherwise        applicable  pursuant to  the  foregoing).   Without limiting  the provisions  of  Section  3.01(c),  this        Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses,        claims, damages, etc. arising from any non-Tax claim.               (c)   Reimbursement by Lenders.  To the extent that the Loan Parties for any reason        fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid        by them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline        Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the        Administrative  Agent  (or  any  such  sub-agent),  the  L/C  Issuer,  the  Swingline  Lender  or  such        Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the        applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share        of the Total Credit Exposures of all Lenders at such time) of such unpaid amount (including any        such unpaid amount in respect of a claim asserted by such Lender), such payment to be made        severally among them based on such Lenders’ Applicable Percentage (determined as of the time        that the applicable unreimbursed expense or indemnity payment is sought); provided, further that,        the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the        case  may  be,  was  incurred  by  or  asserted  against  the  Administrative  Agent  (or  any  such  sub-       agent), the  L/C  Issuer  or the  Swingline  Lender  in  its  capacity  as  such,  or  against  any  Related        Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the        L/C  Issuer  or  the  Swingline  Lender  in  connection  with  such  capacity.   The  obligations  of  the        Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).               (d)   Waiver  of  Consequential  Damages,  Etc.   Without  limiting  the  Loan  Parties’        indemnification  obligations  above,  to  the  fullest  extent  permitted  by  applicable  law,  no  party        hereto shall assert, and each other party hereto hereby waives, any claim against any other party        hereto  (or  any  Indemnitee  or  any  Loan  Party),  on  any  theory  of  liability,  for  special,  indirect,        consequential  or  punitive  damages  (as  opposed  to  direct  or  actual  damages)  arising  out  of,  in        connection with, or as a result of, this Agreement, any other Loan Document or any agreement or        instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or        Letter  of  Credit  or the  use  of the  proceeds thereof  (other than  in  respect  of  any  such  damages        incurred  or  paid  by  an  Indemnitee  to  a  third  party  and  to  which  such  Indemnitee  is  otherwise        entitled to indemnification as provided above).  No Indemnitee shall be liable for any damages        arising from the use by unintended recipients of any information or other materials distributed to        such unintended recipients by such Indemnitee through telecommunications, electronic or other        information  transmission  systems  in  connection  with  this  Agreement  or  the  other  Loan        Documents  or  the  transactions  contemplated  hereby  or  thereby  other  than  for  direct  or  actual        damages  resulting  from  the  gross  negligence  or  willful  misconduct  of  such  Indemnitee  as        determined by a final and nonappealable judgment of a court of competent jurisdiction.               (e)   Payments.  All amounts due under this Section shall be payable not later than ten        (10) Business Days after demand therefor.                                         113  CHAR1\1593539v8  





 






            (f)   Survival.  The agreements in this Section and the indemnity provisions of Section        11.02(e)  shall  survive  the  resignation  of  the  Administrative  Agent,  the  L/C  Issuer  and  the        Swingline Lender, the replacement of any Lender, the termination of the Commitments and the        repayment, satisfaction or discharge of all the other Obligations.         11.05 Payments Set Aside.         To the extent that any payment by or on behalf of any Loan Party is made to the Administrative  Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises  its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently  invalidated,  declared  to  be  fraudulent  or  preferential,  set  aside  or  required  (including  pursuant  to  any  settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be  repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief  Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended  to be satisfied shall be revived and continued in full force and effect as if such payment had not been  made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to  the  Administrative  Agent  upon  demand  its  applicable  share  (without  duplication)  of  any  amount  so  recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand  to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in  effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall  survive the payment in full of the Obligations and the termination of this Agreement.         11.06 Successors and Assigns.                (a)   Successors  and  Assigns  Generally.   The  provisions  of  this  Agreement  and  the        other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and        thereto  and  their  respective  successors  and  assigns  permitted  hereby,  except  that  the  Borrower        may  not  assign  or  otherwise  transfer  any  of  its  rights  or  obligations  hereunder  or  thereunder        without the  prior  written  consent  of the  Administrative  Agent  and each  Lender  and no  Lender        may  assign  or  otherwise  transfer  any  of  its  rights  or  obligations  hereunder  except  (i)  to  an        assignee  in  accordance  with  the  provisions  of  subsection  (b)  of  this  Section,  (ii)  by  way  of        participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of        pledge  or  assignment  of  a  security  interest  subject  to  the  restrictions  of  subsection  (e)  of  this        Section  (and  any  other  attempted  assignment  or  transfer  by  any  party  hereto  shall  be  null  and        void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any        Person (other than the  parties  hereto, their  respective successors and  assigns  permitted hereby,        Participants to the extent provided in subsection (d) of this Section and, to the extent expressly        contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and        the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.               (b)   Assignments by Lenders.  Any Lender  may at any time assign to one or  more        assignees all or a portion of its rights and obligations under this Agreement and the other Loan        Documents (including all or a portion of its Commitment and the Loans (including for purposes        of  this  subsection  (b),  participations  in  L/C  Obligations  and  in  Swingline  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 related Loans at the time owing to                     it  or  contemporaneous  assignments  to  related  Approved  Funds  (determined                                        114  CHAR1\1593539v8  





 






                   after giving effect to such assignments) that equal at least the amount specified                     in  subsection  (b)(i)(B)  of  this  Section  in  the  aggregate  or  in  the  case  of  an                     assignment  to  a  Lender,  an  Affiliate  of  a  Lender  or  an  Approved  Fund,  no                     minimum amount need be assigned; and                           (B)   in any case not described in subsection (b)(i)(A) of this Section,                     the  aggregate  amount  of  the  Commitment  (which  for  this  purpose  includes                     Loans outstanding thereunder) or, if the Commitment is not then in effect, the                     principal outstanding balance of the Loans of the assigning Lender subject to                     each  such  assignment,  determined  as  of  the  date  the  Assignment  and                     Assumption with respect to such assignment is delivered to the Administrative                     Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of                     the  Trade  Date,  shall  not  be  less  than  $10,000,000  unless  each  of  the                     Administrative Agent and, so long as no Event of Default has occurred and is                     continuing,  the  Borrower  otherwise  consents  (each  such  consent  not  to  be                     unreasonably withheld or delayed).                     (ii)  Proportionate  Amounts.   Each  partial  assignment  shall  be  made  as  an              assignment of a proportionate part of all the assigning Lender’s Loans and Commitments,              and rights and obligations with respect thereto, assigned, except that this clause (ii) shall              not apply to the Swingline Lender’s rights and obligations in respect of Swingline Loans;                     (iii) Required  Consents.   No  consent  shall  be  required  for  any  assignment              except to the extent required by subsection (b)(i)(B) of this Section and, in addition:                           (A)   the  consent  of  the  Borrower  (such  consent  not  to  be                     unreasonably  withheld  or  delayed)  shall  be  required  unless  (1)  an  Event  of                     Default has occurred  and  is  continuing  at  the  time  of  such  assignment or  (2)                     such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;                     provided  that  the  Borrower  shall  be  deemed  to  have  consented  to  any  such                     assignment unless it shall object thereto by written notice to the Administrative                     Agent within five (5) Business Days after having received notice thereof;                           (B)   the consent of the Administrative Agent (such consent not to be                     unreasonably withheld or delayed) shall be required for assignments in respect                     of any Revolving Commitment if such assignment is to a Person that is not a                     Lender with a Revolving Commitment subject to such assignment, an Affiliate                     of such Lender or an Approved Fund with respect to such Lender; and                           (C)   the consent of the L/C Issuer and the Swingline Lender shall be                     required  for  any  assignment  in  respect  of  Revolving  Loans  and  Revolving                     Commitments.                     (iv)  Assignment  and  Assumption.   The  parties  to  each  assignment  shall              execute and deliver to the Administrative Agent an Assignment and Assumption, together              with a processing and recordation fee in the amount of $3,500; provided, however, that              the Administrative Agent may, in its sole discretion, elect to waive such processing and              recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall              deliver to the Administrative Agent an Administrative Questionnaire.                                         115  CHAR1\1593539v8  





 






                  (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, (B) any Defaulting              Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,              would  constitute  any  of  the  foregoing  Persons  described  in  this  clause  (B),  or  (C)  a              natural  Person  (or  a  holding  company,  investment  vehicle  or  trust  for,  or  owned  and              operated for the primary benefit of a natural Person).                     (vi)  Certain  Additional  Payments.   In  connection  with  any  assignment  of              rights and obligations of any Defaulting Lender hereunder, no such assignment shall be              effective unless and until, in addition to the other conditions thereto set forth herein, the              parties  to  the  assignment  shall  make  such  additional  payments  to  the  Administrative              Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which              may  be  outright  payment,  purchases  by  the  assignee  of  participations  or              subparticipations, or other compensating actions, including funding, with the consent of              the  Borrower  and  the  Administrative  Agent,  the  applicable  pro  rata  share  of  Loans              previously  requested  but  not  funded  by  the  Defaulting  Lender,  to  each  of  which  the              applicable assignee  and  assignor  hereby  irrevocably  consent), to  (x)  pay  and  satisfy  in              full  all  payment  liabilities then  owed  by such  Defaulting  Lender  to  the  Administrative              Agent,  the  L/C  Issuer  or  any  Lender  hereunder  (and  interest  accrued  thereon)  and  (y)              acquire (and fund as appropriate) its full pro rata share of all Loans and participations in              Letters  of  Credit  and  Swingline  Loans  in  accordance  with  its  Applicable  Percentage.               Notwithstanding the foregoing, in the event that any assignment of rights and obligations              of any Defaulting Lender hereunder shall become effective under applicable Law without              compliance with the provisions of this 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 subsection (c) of this  Section,  from  and  after  the  effective  date  specified  in  each  Assignment  and  Assumption,  the  assignee  thereunder  shall  be  a  party  to  this  Agreement  and,  to  the  extent  of  the  interest  assigned  by  such  Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the  assigning  Lender  thereunder  shall,  to  the  extent  of  the  interest  assigned  by  such  Assignment  and  Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment  and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01,  3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such  assignment);  provided  that  except  to  the  extent  otherwise  expressly  agreed  by  the  affected  parties,  no  assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder  arising from that Lender’s having been a Defaulting Lender.  Upon request, the Borrower (at its expense)  shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights  or  obligations  under  this  Agreement  that  does  not  comply  with  this  subsection  shall  be  treated  for  purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in  accordance with subsection (d) of this Section.               (c)   Register.   The  Administrative  Agent,  acting  solely  for  this  purpose  as  a  non-       fiduciary agent of the Borrower (and such agency being solely for tax purposes), shall maintain at        the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or        the  equivalent  thereof  in  electronic  form)  and  a  register  for  the  recordation  of  the  names  and        addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of        the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to        time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and                                       116  CHAR1\1593539v8  





 






      the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is        recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of        this Agreement.  The Register shall be available for inspection by the Borrower and any Lender at        any reasonable time and from time to time upon reasonable prior notice.               (d)   Participations.  Any Lender may at any time, without the consent of, or notice to,        the Borrower or the Administrative Agent, sell participations to any Person (other than a natural        Person  (or  a  holding  company,  investment  vehicle  or  trust  for,  or  owned  and  operated  for  the        primary  benefit  of  a  natural  Person),  a  Defaulting  Lender  or  the  Borrower  or  any  of  the        Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s        rights  and/or  obligations  under  this  Agreement  (including  all  or  a  portion  of  its  Commitment        and/or  the  Loans  (including  such  Lender’s  participations  in  L/C  Obligations  and/or  Swingline        Loans)  owing  to  it);  provided  that  (i)  such  Lender’s  obligations  under  this  Agreement  shall        remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for        the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders        and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with        such  Lender’s  rights and  obligations  under  this  Agreement.   For  the avoidance  of  doubt,  each        Lender  shall  be  responsible  for  the  indemnity  under  Section  11.04(c)  without  regard  to  the        existence of any participation.         Any agreement or instrument pursuant to which a Lender sells such a participation shall provide  that  such  Lender shall  retain the  sole right to  enforce  this  Agreement  and  to  approve  any  amendment,  modification or waiver of any provision of this Agreement; provided that such agreement or instrument  may provide that such Lender will not, without the consent of the Participant, agree to any amendment,  waiver or other modification described in Section 11.01(a) that affects such Participant.  The Borrower  agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same  extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this  Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to  the  Lender  who  sells  the  participation)  to  the  same  extent  as  if  it  were  a  Lender  and  had  acquired  its  interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees  to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under paragraph (b) of  this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with  respect to any participation, than the Lender from whom it acquired the applicable participation would  have been entitled to receive, except to the extent such entitlement to receive a greater payment results  from a Change in Law that occurs after the Participant acquired the applicable participation.  Each Lender  that  sells  a  participation  agrees,  at  the  Borrower’s  request  and  expense,  to  use  reasonable  efforts  to  cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant.   To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 11.08 as  though it were a Lender; provided that such Participant agrees to be subject to Section 2.13as 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 Loan Documents (the “Participant Register”); provided that no Lender shall  have any obligation to disclose all or any portion of the Participant Register (including the identity of any  Participant  or  any  information relating  to  a Participant’s interest in  any  commitments, loans,  letters  of  credit or its other obligations under any Loan Document) to any Person except to the extent that such  disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in  registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the  Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person  whose name is recorded in the Participant Register as the owner of such participation for all purposes of  this  Agreement  notwithstanding  any  notice  to  the  contrary.   For  the  avoidance  of  doubt,  the                                       117  CHAR1\1593539v8  





 






Administrative  Agent  (in  its  capacity  as  Administrative  Agent)  shall  have  no  responsibility  for  maintaining a Participant Register.               (e)   Certain Pledges.  Any Lender may at any time pledge or assign a security interest        in all or any portion of its rights under this Agreement (including under its Note, if any) to secure        obligations of such Lender, including any pledge or assignment to secure obligations to a Federal        Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of        its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party        hereto.               (f)   Resignation  as  L/C  Issuer  or  Swingline  Lender  after  Assignment.         Notwithstanding  anything  to  the  contrary  contained  herein,  if  at  any  time  Bank  of  America        assigns all of its Revolving Commitment and Revolving Loans pursuant to subsection (b) above,        Bank of America may, (i) upon thirty (30) days’ notice to the Borrower and the Lenders, resign as        L/C Issuer and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender.         In the event of any such resignation as L/C Issuer or Swingline Lender, the Borrower shall be        entitled  to  appoint  from  among  the  Lenders  a  successor  L/C  Issuer  or  Swingline  Lender        hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall        affect the resignation of Bank of America as L/C Issuer or Swingline Lender, as the case may be.         If  Bank  of  America  resigns  as  L/C  Issuer,  it  shall  retain  all  the  rights,  powers,  privileges  and        duties  of  the  L/C  Issuer  hereunder  with  respect  to  all  Letters  of  Credit  outstanding  as  of  the        effective  date  of  its  resignation  as  L/C  Issuer  and  all  L/C  Obligations  with  respect  thereto        (including the right to require the Lenders to make Base Rate Loans or fund risk participations in        Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swingline        Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect        to  Swingline  Loans  made  by  it  and  outstanding  as  of  the  effective  date  of  such  resignation,        including the right to require the Lenders to make Base Rate Loans or fund risk participations in        outstanding Swingline Loans pursuant to Section 2.04(c).  Upon the appointment of a successor        L/C Issuer and/or Swingline Lender, (1) such successor shall succeed to and become vested with        all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as        the case may be, and (2) the successor L/C Issuer shall issue letters of credit in substitution for the        Letters of Credit, if any, outstanding at the time of such succession or make other arrangements        reasonably  satisfactory  to  Bank  of  America  to  effectively  assume  the  obligations  of  Bank  of        America with respect to such Letters of Credit.         11.07 Treatment of Certain Information; Confidentiality.          Each  of  the  Administrative  Agent,  the  Lenders  and  the  L/C  Issuer  agrees  to  maintain  the  confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its  Affiliates,  its  auditors  and  to  its  Related  Parties  (it  being  understood  that  the  Persons  to  whom  such  disclosure is made will be informed of the confidential nature of such Information and instructed to keep  such  Information  confidential),  (b)  to  the  extent  required  or  requested  by  any  regulatory  authority  purporting  to  have  jurisdiction  over  such  Person  or  its  Related  Parties  (including  any  self-regulatory  authority, such as the National Association of Insurance Commissioners), (c) to the extent required by  applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto,  (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any  action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights  hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those  of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in,  any  of  its  rights  and  obligations  under  this  Agreement  or  any  Eligible  Assignee  invited  to  become  a  Lender pursuant to Section 2.16 or (ii) any actual or prospective party (or its Related Parties) to any swap,                                       118  CHAR1\1593539v8  





 






derivative or other transaction under which payments are to be made by reference to the Borrower and its  obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in  connection with rating any Loan Party or its Subsidiaries or the credit facilities provided hereunder or (ii)  the  CUSIP  Service  Bureau  or  any  similar  agency  in  connection  with  the  issuance  and  monitoring  of  CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (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 L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other  than the Borrower.  In addition, the Administrative Agent and the Lenders may disclose the existence of  this Agreement and information about this Agreement to market data collectors, similar service providers  to the lending industry and service providers to the Administrative Agent and the Lenders in connection  with the administration of this Agreement, the other Loan Documents, and the Commitments.         For purposes of this Section, “Information” means all information received from a Loan Party or  any Subsidiary, whether directly or from a Loan Party or a Subsidiary’s managers, officers, employees,  attorneys,  agents,  or  other  advisors,  relating  to  the  Loan  Parties  or  any  Subsidiary  or  any  of  their  respective businesses, other than any such information that is available to the Administrative Agent, any  Lender  or  the  L/C  Issuer  on  a  nonconfidential  basis  prior  to  disclosure  by  such  Loan  Party  or  any  Subsidiary.   Any  Person  required  to  maintain  the  confidentiality  of  Information  as  provided  in  this  Section shall be considered to have complied with its obligation to do so if such Person has exercised the  same degree of care to maintain the confidentiality of such Information as such Person would accord to its  own confidential information.         Each  of  the  Administrative  Agent,  the  Lenders  and  the  L/C  Issuer  acknowledges  that  (a)  the  Information may include material non-public information concerning a Loan Party or a Subsidiary, as the  case  may  be,  (b)  it  has  developed  compliance  procedures  regarding  the  use  of  material  non-public  information  and  (c)  it  will  handle  such  material  non-public  information  in  accordance  with  applicable  Law, including United States Federal and state securities Laws.         11.08 Rights of Setoff.         If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and  each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining  the prior written consent of the Administrative Agent, to the fullest extent permitted by applicable Law, to  set  off  and  apply  any  and  all  deposits  (general  or  special,  time  or  demand,  provisional  or  final,  in  whatever currency) at any time held and other obligations (in whatever currency) at any time owing by  such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any Loan Party  against any and all of the obligations of such Loan Party now or hereafter existing under this Agreement  or any other Loan Document to such Lender or the L/C Issuer or their respective Affiliates, irrespective of  whether  or  not  such  Lender,  the  L/C  Issuer  or  such  Affiliate  shall  have  made  any  demand  under  this  Agreement  or  any  other  Loan  Document  and  although  such  obligations  of  such  Loan  Party  may  be  contingent or unmatured or are owed to a branch or office or Affiliate of such Lender or the L/C Issuer  different from the branch or office or Affiliate holding such deposit or obligated on such indebtedness;  provided  that  in  the  event  that  any  Defaulting  Lender  shall  exercise  any  such  right  of  setoff,  (x)  all  amounts so set off shall be paid over immediately to the Administrative Agent for further application in  accordance with the provisions of Section 2.15 and, pending such payment, shall be segregated by such  Defaulting  Lender  from  its  other  funds  and  deemed  held  in  trust  for the  benefit  of  the  Administrative  Agent,  the  L/C  Issuer  and  the  Lenders,  and  (y)  the  Defaulting  Lender  shall  provide  promptly  to  the  Administrative  Agent  a  statement  describing  in  reasonable  detail  the  Obligations  owing  to  such  Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, the L/C Issuer  and their respective Affiliates under this Section are in addition to other rights and remedies (including                                       119  CHAR1\1593539v8  





 






other  rights  of  setoff)  that  such  Lender,  the  L/C  Issuer  or  their  respective  Affiliates  may  have.   Each  Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any  such setoff and application; provided that the failure to give such notice shall not affect the validity of  such setoff and application.         11.09 Interest Rate Limitation.         Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or  agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest  permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall  receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the  principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining  whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds  the  Maximum  Rate,  such  Person  may,  to  the  extent permitted  by  applicable  Law, (a)  characterize  any  payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary  prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal  parts the total amount of interest throughout the contemplated term of the Obligations hereunder.         11.10 Counterparts; Integration; Effectiveness.         This Agreement and each of the other Loan Documents may be executed in counterparts (and by  different  parties  hereto  in  different  counterparts),  each  of  which  shall  constitute  an  original,  but all  of  which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents  and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C  Issuer constitute the entire contract among the parties relating to the subject matter hereof and supersede  any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.   Except  as  provided  in  Section  4.01,  this  Agreement  shall  become  effective  when  it  shall  have  been  executed  by  the  Administrative  Agent  and  when  the  Administrative  Agent  shall  have  received  counterparts  hereof  that,  when  taken  together,  bear  the  signatures  of  each  of  the  other  parties  hereto.   Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Document,  or any certificate delivered thereunder, by fax transmission or e-mail transmission (e.g., “pdf” or “tif”)  shall be effective as delivery of a manually executed counterpart of this Agreement or such other Loan  Document or certificate.  Without limiting the foregoing, to the extent a manually executed counterpart is  not specifically required to be delivered under the terms of any Loan Document, upon the request of any  party,  such  fax  transmission  or  e-mail  transmission  shall  be  promptly  followed  by  such  manually  executed counterpart.         11.11 Survival of Representations and Warranties.          All  representations  and  warranties  made  hereunder  and  in  any  other  Loan  Document  or  other  document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the  execution  and  delivery  hereof  and  thereof.   Such  representations  and  warranties  have  been  or  will  be  relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the  Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent  or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain  unpaid or unsatisfied or any Letter of Credit shall remain outstanding.         11.12 Severability.                                         120  CHAR1\1593539v8  





 






      If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or  unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement  and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor  in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions  the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable  provisions.   The  invalidity  of  a  provision  in  a  particular  jurisdiction  shall  not  invalidate  or  render  unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this  Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to  Defaulting  Lenders  shall  be  limited  by  Debtor  Relief  Laws,  as  determined  in  good  faith  by  the  Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall  be deemed to be in effect only to the extent not so limited.         11.13 Replacement of Lenders.          If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any  Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense  and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and  delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents  required by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant  to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an  Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender  accepts such assignment); provided that:               (a)   the Borrower shall have paid to the Administrative Agent the assignment fee (if        any) specified in Section 11.06(b);               (b)   such Lender shall have received payment of an amount equal to the outstanding        principal  of  its  Loans  and  L/C  Advances,  accrued  interest  thereon,  accrued  fees  and  all  other        amounts payable to it hereunder  and  under  the  other Loan  Documents (including  any  amounts        under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued        interest and fees) or the Borrower (in the case of all other amounts);               (c)   in the case of any such assignment resulting from a claim for compensation under        Section  3.04  or  payments  required  to  be  made  pursuant  to  Section  3.01,  such  assignment  will        result in a reduction in such compensation or payments thereafter;               (d)   such assignment does not conflict with applicable Laws; and               (e)   in the case of an assignment resulting from a Lender becoming a Non-Consenting        Lender,  the  applicable  assignee  shall  have  consented  to  the  applicable  amendment,  waiver  or        consent.         A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such  assignment and delegation cease to apply.         11.14 Governing Law; Jurisdiction; Etc.               (a)   GOVERNING  LAW.   THIS  AGREEMENT  AND  THE  OTHER  LOAN        DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET        FORTH  THEREIN)  AND  ANY  CLAIMS,  CONTROVERSY,  DISPUTE  OR  CAUSE  OF                                        121  CHAR1\1593539v8  





 






      ACTION  (WHETHER  IN  CONTRACT  OR  TORT  OR  OTHERWISE)  BASED  UPON,        ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN        DOCUMENT  (EXCEPT, AS  TO  ANY  OTHER LOAN  DOCUMENT,  AS EXPRESSLY  SET        FORTH  THEREIN)  AND  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  AND        THEREBY  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  IN  ACCORDANCE  WITH,        THE LAW OF THE STATE OF NEW YORK.               (b)   SUBMISSION TO JURISDICTION.  EACH LOAN PARTY IRREVOCABLY        AND  UNCONDITIONALLY  AGREES  THAT  IT WILL  NOT  COMMENCE  ANY  ACTION,        LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW        OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE        ADMINISTRATIVE  AGENT,  ANY  LENDER,  THE  L/C  ISSUER,  OR  ANY  RELATED        PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY        OTHER  LOAN  DOCUMENT  OR  THE  TRANSACTIONS  RELATING  HERETO  OR        THERETO,  IN  ANY  FORUM  OTHER  THAN  THE  COURTS  OF  THE  STATE  OF  NEW        YORK  SITTING  IN  NEW  YORK  COUNTY  AND  OF  THE  UNITED  STATES  DISTRICT        COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT        FROM  ANY  THEREOF,  AND  EACH  OF  THE  PARTIES  HERETO  IRREVOCABLY  AND        UNCONDITIONALLY  SUBMITS  TO  THE  JURISDICTION  OF  SUCH  COURTS  AND        AGREES  THAT  ALL  CLAIMS  IN  RESPECT  OF  ANY  SUCH  ACTION,  LITIGATION  OR        PROCEEDING  MAY  BE  HEARD  AND  DETERMINED  IN  SUCH  NEW  YORK  STATE        COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH        FEDERAL  COURT.   EACH  OF  THE  PARTIES  HERETO  AGREES  THAT  A  FINAL        JUDGMENT  IN  ANY  SUCH  ACTION,  LITIGATION  OR  PROCEEDING  SHALL  BE        CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE        JUDGMENT  OR  IN  ANY  OTHER  MANNER  PROVIDED  BY  LAW.   NOTHING  IN  THIS        AGREEMENT  OR  IN  ANY  OTHER  LOAN  DOCUMENT  SHALL  AFFECT  ANY  RIGHT        THAT  THE  ADMINISTRATIVE  AGENT,  ANY  LENDER  OR  THE  L/C  ISSUER  MAY        OTHERWISE  HAVE  TO  BRING  ANY  ACTION  OR  PROCEEDING  RELATING  TO  THIS        AGREEMENT  OR  ANY OTHER  LOAN  DOCUMENT  AGAINST  ANY  LOAN  PARTY  OR        ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.               (c)   WAIVER  OF  VENUE.   EACH  LOAN  PARTY  IRREVOCABLY  AND        UNCONDITIONALLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY        APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO        THE  LAYING  OF  VENUE  OF  ANY  ACTION  OR  PROCEEDING  ARISING  OUT  OF  OR        RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  IN  ANY        COURT  REFERRED  TO  IN  PARAGRAPH  (B)  OF  THIS  SECTION.   EACH  OF  THE        PARTIES  HERETO  HEREBY  IRREVOCABLY  WAIVES,  TO  THE  FULLEST  EXTENT        PERMITTED  BY  APPLICABLE  LAW,  THE  DEFENSE  OF  AN  INCONVENIENT  FORUM        TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.               (d)   SERVICE  OF  PROCESS.   EACH  PARTY  HERETO  IRREVOCABLY        CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN        SECTION 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY        PARTY  HERETO  TO  SERVE  PROCESS  IN  ANY  OTHER  MANNER  PERMITTED  BY        APPLICABLE LAW.         11.15 Waiver of Jury Trial.                                          122  CHAR1\1593539v8  





 






      EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  RIGHT  IT  MAY  HAVE  TO  A  TRIAL  BY  JURY  IN  ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  OR  THE  TRANSACTIONS  CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY  OTHER  THEORY).   EACH  PARTY  HERETO  (A)  CERTIFIES  THAT  NO  REPRESENTATIVE,  AGENT  OR  ATTORNEY  OF  ANY  OTHER  PERSON  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH  OTHER  PERSON  WOULD  NOT,  IN  THE  EVENT  OF  LITIGATION,  SEEK  TO  ENFORCE  THE  FOREGOING  WAIVER  AND  (B)  ACKNOWLEDGES  THAT  IT  AND  THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT  AND  THE  OTHER  LOAN  DOCUMENTS  BY,  AMONG  OTHER  THINGS,  THE  MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION.         11.16 No Advisory or Fiduciary Responsibility.          In connection with all aspects of each transaction contemplated hereby (including in connection  with any amendment, waiver or other modification hereof or of any other Loan Document), each of the  Loan Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the  arranging  and  other  services  regarding  this  Agreement  provided  by  the  Administrative  Agent,  the  Arrangers, and the Lenders are arm’s-length commercial transactions between the Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers, and the Lenders, on  the other hand, (B) each of the Loan Parties has consulted its own legal, accounting, regulatory and tax  advisors to the extent it has deemed appropriate, and (C) each of the Loan Parties is capable of evaluating,  and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and  by the other Loan Documents; (ii) (A) the Administrative Agent, the Arrangers and the Lenders each is  and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties,  has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties or any of  their respective Affiliates, or any other Person and (B) neither the Administrative Agent, any Arranger,  nor any Lender has any obligation to the Loan Parties or any of their respective Affiliates with respect to  the transactions contemplated hereby except those obligations expressly set forth herein and in the other  Loan  Documents;  and  (iii)  the  Administrative  Agent,  the  Arrangers,  the  Lenders  and  their  respective  Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of  the Loan Parties and their respective Affiliates, and neither the Administrative Agent, any Arranger, nor  any Lender has any obligation to disclose any of such interests to the Loan Parties and their respective  Affiliates.  To the fullest extent permitted by Law, each of the Loan Parties hereby waives and releases  any claims that it may have against the Administrative Agent, any Arranger or any Lender with respect to  any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction  contemplated hereby.         11.17 Electronic Execution of Assignments and Certain Other Documents.         The words “execute,” “execution,” “signed,” “signature,” and words of like import in any Loan  Document or any other document to be signed in connection with this Agreement, any other document  executed  in  connection  herewith  and  the  transactions  contemplated  hereby  shall  be  deemed  to  include  electronic signatures, the electronic matching of assignment terms and contract formations on electronic  platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of  which  shall  be  of  the  same  legal  effect,  validity  or  enforceability  as  a  manually  executed  signature,  physical delivery or the use of a paper-based recordkeeping system, as the case may be, to the extent and  as provided for in any applicable law, including the Federal Electronic Signatures in Global and National  Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state  laws  based  on  the  Uniform  Electronic  Transactions  Act;  provided  that  notwithstanding  anything                                       123  CHAR1\1593539v8  





 






contained  herein  to  the  contrary  the  Administrative  Agent  is  under  no  obligation  to  agree  to  accept  electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent  pursuant to procedures approved by it; provided further without limiting the foregoing, upon the written  request  of  the  Administrative  Agent,  any  electronic  signature  shall  be  promptly  followed  by  such  manually executed counterpart.         11.18 USA PATRIOT Act Notice.          Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for  itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements  of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it  is required to obtain,  verify  and  record information that identifies  the  Loan  Parties, which  information  includes the name and address of the Loan Parties and other information that will allow such Lender or  the  Administrative Agent, as  applicable,  to identify  the  Loan  Parties  in  accordance  with  the Act.  The  Loan Parties shall, promptly following a request by the Administrative Agent or any Lender, provide all  documentation and other information that the Administrative Agent or such Lender requests in order to  comply with its ongoing obligations under applicable “know your customer” and anti-money laundering  rules and regulations, including the Act.         11.19 Subordination of Intercompany Indebtedness.         Each Loan Party (a “Subordinating Loan Party”) agrees that the payment of all obligations and  indebtedness,  whether  principal,  interest,  fees  and  other  amounts  and  whether  now  owing  or  hereafter  arising, owing to such Subordinating Loan Party by any other Loan Party is expressly subordinated to the  payment in full in cash of the Obligations.  If the Administrative Agent so requests in writing, any such  obligation or indebtedness shall be enforced and performance received by the Subordinating Loan Party  as trustee for the holders of the Obligations and the proceeds thereof shall be paid over to the holders of  the  Obligations  on  account  of  the  Obligations,  but  without  reducing  or  affecting  in  any  manner  the  liability of the Subordinating Loan Party under this Agreement or any other Loan Document.  Without  limitation  of  the  foregoing,  so  long  as  no  Event  of  Default  has  occurred  and  is  continuing,  the  Loan  Parties may make and receive payments with respect to any such obligations and indebtedness; provided  that in the event that any Loan Party receives any payment of any such obligations and indebtedness at a  time when such payment is prohibited by this Section, such payment shall be held by such Loan Party, in  trust  for  the  benefit  of,  and  shall  be  paid  forthwith  over  and  delivered,  upon  written  request,  to  the  Administrative Agent.         11.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.           Solely to the extent any Lender or L/C Issuer that is an EEA Financial Institution is a party to this  Agreement  and  notwithstanding  anything  to  the  contrary  in  any  Loan  Document  or  in  any  other  agreement, arrangement or understanding among any such parties, each party hereto acknowledges that  any  liability  of  any  Lender  or  L/C  Issuer  that  is  an  EEA  Financial  Institution  arising  under  any  Loan  Document,  to  the  extent  such  liability  is  unsecured, may  be  subject  to the  write-down  and  conversion  powers of an EEA 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  EEA        Resolution Authority to any such liabilities arising hereunder which may be payable to it by any        Lender or L/C Issuer that is an EEA Financial Institution; and               (b)   the effects of any Bail-In Action on any such liability, including, if applicable:                                        124  CHAR1\1593539v8  





 






                  (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 EEA 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 Loan Document; or                     (iii) the variation of the terms of such liability in connection with the exercise              of the Write-Down and Conversion Powers of any EEA Resolution Authority.         11.21  Judgment Currency.         If,  for  the  purposes  of  obtaining  judgment  in  any  court,  it  is  necessary  to  convert  a  sum  due  hereunder or any other Loan Document in one currency into another currency, the rate of 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  each  Loan  Party  in  respect  of  any  such  sum  due  from  it  to  the  Administrative  Agent  or  the  L/C  Issuer  hereunder  or  under  the  other  Loan  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 the L/C Issuer, as the case may be, of any sum adjudged to be so due in the  Judgment Currency, the Administrative Agent or the L/C Issuer, as the case may be, 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 the L/C Issuer from any Loan Party in the Agreement Currency, the Loan Parties agree, as a  separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the  L/C Issuer, as the case may be, against such loss.  If the amount of the Agreement Currency so purchased  is greater than the sum originally due to the Administrative Agent or the L/C Issuer in such currency, the  Administrative Agent or the L/C Issuer, as the case may be, agrees to return the amount of any excess to  the Loan Parties (or to any other Person who may be entitled thereto under applicable Law).         11.22  Funding Losses Under Existing Credit Agreement.         Each  Lender  party  hereto  that  is  a  party  to  the  Existing  Credit  Agreement  hereby  waives  any  “breakage”  costs  that  it  would  otherwise  be  entitled  to  pursuant  to  Section  2.12(b)(ii)  of  the  Existing  Credit Agreement solely as a result of the termination of the Existing Credit Agreement in connection  with the Borrower’s entry into this Agreement.                             [SIGNATURE PAGES FOLLOW]                                         125  CHAR1\1593539v8