rbc-civeoxcreditagreemen






 Execution Version      US-DOCS\125501258.12 SYNDICATED FACILITY AGREEMENT  dated as of September 8, 2021  among  CIVEO CORPORATION,  CIVEO PTY LIMITED  and    CIVEO MANAGEMENT LLC,    as Borrowers  THE LENDERS NAMED HEREIN,  ROYAL BANK OF CANADA,  as Administrative Agent, U.S. Collateral Agent,  Canadian Administrative Agent, Canadian Collateral Agent  and an Issuing Bank,  and  RBC EUROPE LIMITED,  as Australian Administrative Agent, Australian Collateral Agent  and an Issuing Bank           RBC CAPITAL MARKETS,1  as Joint Lead Arranger and Sole Bookrunner    and  HSBC BANK CANADA and BANK OF MONTREAL,   as Joint Lead Arrangers and Syndication Agents   1  RBC Capital Markets is the global brand name of the corporate and investment banking business of Royal Bank  of Canada and its affiliates.  





 






  i  US-DOCS\125501258.12  Table of Contents  Page  ARTICLE I DEFINITIONS ......................................................................................................................... 1  SECTION 1.01 Defined Terms .................................................................................................... 1  SECTION 1.02 Terms Generally ............................................................................................... 49  SECTION 1.03 Several Obligations; Power of Attorney ........................................................... 50  SECTION 1.04 Classification of Loans and Borrowings .......................................................... 51  SECTION 1.05 Additional Alternative Currencies .................................................................... 51  SECTION 1.06 Cashless Rolls ................................................................................................... 51  ARTICLE II THE CREDITS ...................................................................................................................... 51  SECTION 2.01 Commitments ................................................................................................... 51  SECTION 2.02 Loans ................................................................................................................ 52  SECTION 2.03 Borrowing Procedure ........................................................................................ 56  SECTION 2.04 Evidence of Debt; Repayment of Loans ........................................................... 57  SECTION 2.05 Fees ................................................................................................................... 58  SECTION 2.06 Interest on Loans .............................................................................................. 61  SECTION 2.07 Default Interest ................................................................................................. 62  SECTION 2.08 Alternate Rate of Interest .................................................................................. 63  SECTION 2.09 Termination and Reduction of Commitments .................................................. 65  SECTION 2.10 Conversion and Continuation of Borrowings ................................................... 66  SECTION 2.11 Optional Prepayment ........................................................................................ 68  SECTION 2.12 Mandatory Prepayments ................................................................................... 69  SECTION 2.13 Increased Costs; Capital Requirements ............................................................ 70  SECTION 2.14 Change in Legality ........................................................................................... 72  SECTION 2.15 Breakage Costs ................................................................................................. 72  SECTION 2.16 Pro Rata Treatment ........................................................................................... 73  SECTION 2.17 Sharing of Setoffs ............................................................................................. 73  SECTION 2.18 Payments ........................................................................................................... 76  SECTION 2.19 Taxes................................................................................................................. 77  SECTION 2.20 Assignment of Commitments Under Certain Circumstances; Duty to  Mitigate ............................................................................................................. 82  SECTION 2.21 Letters of Credit ................................................................................................ 83  SECTION 2.22 Bankers’ Acceptances....................................................................................... 91  SECTION 2.23 Swing Line Loans ............................................................................................. 93  SECTION 2.24 Defaulting Lenders ........................................................................................... 98  SECTION 2.25 Incremental Revolving Credit Increase .......................................................... 101  SECTION 2.26 Benchmark Replacement ................................................................................ 103  ARTICLE III REPRESENTATIONS AND WARRANTIES .................................................................. 111  SECTION 3.01 Organization; Powers ..................................................................................... 111  SECTION 3.02 Authorization .................................................................................................. 111  SECTION 3.03 Enforceability ................................................................................................. 111  SECTION 3.04 Governmental Approvals ................................................................................ 112  SECTION 3.05 Financial Statements ....................................................................................... 112  SECTION 3.06 No Material Adverse Change ......................................................................... 112  





 






TABLE OF CONTENTS  (continued)  Page  ii  US-DOCS\125501258.12  SECTION 3.07 Title to Properties; Possession Under Leases and Licenses ........................... 112  SECTION 3.08 Subsidiaries ..................................................................................................... 112  SECTION 3.09 Litigation; Compliance with Laws ................................................................. 113  SECTION 3.10 Agreements ..................................................................................................... 113  SECTION 3.11 Federal Reserve Regulations .......................................................................... 113  SECTION 3.12 Investment Company Act ............................................................................... 113  SECTION 3.13 Use of Proceeds .............................................................................................. 114  SECTION 3.14 Tax .................................................................................................................. 114  SECTION 3.15 No Material Misstatements ............................................................................. 114  SECTION 3.16 Employee Benefit Plans.................................................................................. 114  SECTION 3.17 Environmental Matters ................................................................................... 115  SECTION 3.18 Insurance ......................................................................................................... 116  SECTION 3.19 Security Documents ........................................................................................ 116  SECTION 3.20 Intellectual Property ....................................................................................... 116  SECTION 3.21 Labor Matters ................................................................................................. 117  SECTION 3.22 Solvency ......................................................................................................... 117  SECTION 3.23 Anti-Corruption Laws..................................................................................... 117  SECTION 3.24 Anti-Money Laundering Laws ....................................................................... 117  SECTION 3.25 Foreign Assets Control Regulations, etc. ....................................................... 117  ARTICLE IV CONDITIONS TO CLOSING AND FUNDING .............................................................. 117  SECTION 4.01 Conditions to All Credit Events ...................................................................... 118  SECTION 4.02 Conditions to Closing ..................................................................................... 118  ARTICLE V AFFIRMATIVE COVENANTS ......................................................................................... 122  SECTION 5.01 Existence; Businesses and Properties ............................................................. 122  SECTION 5.02 Insurance ......................................................................................................... 123  SECTION 5.03 Obligations and Taxes .................................................................................... 124  SECTION 5.04 Financial Statements, Reports, etc. ................................................................. 124  SECTION 5.05 Litigation and Other Notices .......................................................................... 126  SECTION 5.06 Information Regarding Collateral ................................................................... 127  SECTION 5.07 Maintaining Records; Access to Properties and Inspections .......................... 127  SECTION 5.08 Use of Proceeds .............................................................................................. 127  SECTION 5.09 Further Assurances ......................................................................................... 127  SECTION 5.10 [Reserved] ....................................................................................................... 129  ARTICLE VI NEGATIVE COVENANTS .............................................................................................. 129  SECTION 6.01 Indebtedness ................................................................................................... 129  SECTION 6.02 Liens ............................................................................................................... 130  SECTION 6.03 Sale and Lease-Back Transactions ................................................................. 132  SECTION 6.04 Investments, Loans and Advances .................................................................. 132  SECTION 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions ........................... 135  SECTION 6.06 Restricted Payments; Restrictive Agreements ................................................ 136  SECTION 6.07 Transactions with Affiliates ............................................................................ 137  SECTION 6.08 Business of Borrowers and Subsidiaries ........................................................ 137  SECTION 6.09 Other Indebtedness and Agreements .............................................................. 137  SECTION 6.10 Interest Coverage Ratio .................................................................................. 137  





 






TABLE OF CONTENTS  (continued)  Page  iii  US-DOCS\125501258.12  SECTION 6.11 Leverage Ratios .............................................................................................. 137  SECTION 6.12 Hedging Agreements ...................................................................................... 138  SECTION 6.13 Pension Plans .................................................................................................. 138  SECTION 6.14 Amendment of the Organizational Documents .............................................. 138  SECTION 6.15 Sanction Laws and Regulations ...................................................................... 139  SECTION 6.16 Anti-Corruption Laws..................................................................................... 139  SECTION 6.17 Cross-Guarantee ............................................................................................. 139  ARTICLE VII EVENTS OF DEFAULT .................................................................................................. 139  SECTION 7.01 Events of Default ............................................................................................ 139  SECTION 7.02 Optional Acceleration of Maturity ................................................................. 141  SECTION 7.03 Automatic Acceleration of Maturity ............................................................... 142  SECTION 7.04 Non-exclusivity of Remedies ......................................................................... 142  SECTION 7.05 Application of Proceeds.................................................................................. 142  ARTICLE VIII THE ADMINISTRATIVE AGENTS, THE COLLATERAL AGENTS, THE  ISSUING BANKS AND THE SWING LINE LENDERS .......................................................... 144  SECTION 8.01 Appointment and Authority ............................................................................ 144  SECTION 8.02 Rights as a Lender .......................................................................................... 144  SECTION 8.03 Exculpatory Provisions ................................................................................... 144  SECTION 8.04 Reliance by the Agents, the Issuing Banks and the Swing Line Lenders ....... 145  SECTION 8.05 Delegation of Duties ....................................................................................... 146  SECTION 8.06 Resignation of an Agent or a Swing Line Lender .......................................... 146  SECTION 8.07 Non-Reliance on Agents and Other Lenders; Certain  Acknowledgments .......................................................................................... 147  SECTION 8.08 Indemnification ............................................................................................... 148  SECTION 8.09 Collateral and Guaranty Matters ..................................................................... 149  SECTION 8.10 No Other Duties, etc. ...................................................................................... 151  SECTION 8.11 Agents May File Proofs of Claim ................................................................... 151  SECTION 8.12 Certain ERISA Matters ................................................................................... 151  SECTION 8.13 Erroneous Payments ....................................................................................... 153  ARTICLE IX MISCELLANEOUS .......................................................................................................... 155  SECTION 9.01 Notices ............................................................................................................ 155  SECTION 9.02 Survival of Agreement.................................................................................... 158  SECTION 9.03 Binding Effect ................................................................................................ 158  SECTION 9.04 Successors and Assigns .................................................................................. 158  SECTION 9.05 Expenses; Indemnity ...................................................................................... 164  SECTION 9.06 Right of Setoff ................................................................................................ 166  SECTION 9.07 Applicable Law .............................................................................................. 166  SECTION 9.08 Waivers; Amendment ..................................................................................... 166  SECTION 9.09 Interest Rate Limitation .................................................................................. 170  SECTION 9.10 Entire Agreement ............................................................................................ 171  SECTION 9.11 WAIVER OF JURY TRIAL .......................................................................... 171  SECTION 9.12 Severability ..................................................................................................... 171  SECTION 9.13 Counterparts ................................................................................................... 172  SECTION 9.14 Headings ......................................................................................................... 172  





 






TABLE OF CONTENTS  (continued)  Page  iv  US-DOCS\125501258.12  SECTION 9.15 Jurisdiction; Consent to Service of Process .................................................... 172  SECTION 9.16 Confidentiality ................................................................................................ 173  SECTION 9.17 Judgment Currency ......................................................................................... 174  SECTION 9.18 Exculpation Provisions ................................................................................... 174  SECTION 9.19 Payments Set Aside ........................................................................................ 175  SECTION 9.20 Termination .................................................................................................... 175  SECTION 9.21 Patriot Act Notice ........................................................................................... 175  SECTION 9.22 Public Offer .................................................................................................... 175  SECTION 9.23 Keepwell ......................................................................................................... 177  SECTION 9.24 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions ...................................................................................................... 177  SECTION 9.25 Acknowledgment Regarding Any Supported QFCs ....................................... 178        





 






  v  US-DOCS\125501258.12  Schedule 1.01(a) Rolled Letters of Credit  Schedule 1.01(b) U.S. Subsidiary Guarantors  Schedule 1.01(c) Canadian Subsidiary Guarantors  Schedule 1.01(d) Australian Subsidiary Guarantors  Schedule 2.01 Lenders and Commitments  Schedule 2.04 Amortization  Schedule 2.21 L/C Issuance Limits  Schedule 3.08 Subsidiaries and Special Purpose Business Entities  Schedule 3.09 Litigation  Schedule 3.16(a) Unfunded Plans  Schedule 3.16(b) Canadian Benefit Plans  Schedule 3.17 Environmental Matters  Schedule 6.01 Existing Indebtedness   Schedule 6.02 Existing Liens   Schedule 6.04 Existing Investments  Exhibit A Form of Assignment and Acceptance  Exhibit B-1 Form of U.S. Borrowing Request  Exhibit B-2 Form of Canadian Borrowing Request  Exhibit B-3 Form of Australian Borrowing Request  Exhibit B-4 Form of Swing Line Borrowing Request  Exhibit B-5 Form of Prepayment Notice  Exhibit C-1 Form of Australian Guarantee Agreement  Exhibit C-2 Form of Canadian Guarantee Agreement  Exhibit C-3 Form of U.S. Guarantee Agreement  Exhibit D-1 Form of Canadian Pledge Agreement  Exhibit D-2 Form of U.S. Pledge Agreement  Exhibit E-1 Form of Australian Security Deed  Exhibit E-2 Form of Canadian Security Agreement  Exhibit E-3 Form of U.S. Security Agreement  Exhibit F Form of Compliance Certificate  Exhibit G Form of Discount Note  Exhibit H-1 – H-4 Forms of Exemption Certificate    





 






    US-DOCS\125501258.12  THIS SYNDICATED FACILITY AGREEMENT dated as of September 8, 2021 (as  amended, supplemented or modified from time to time, this “Agreement”), is among CIVEO  CORPORATION, a corporation incorporated under the laws of the Province of British Columbia  (the “Parent Borrower”), CIVEO MANAGEMENT LLC, a Delaware limited liability company  (the “U.S. Borrower”), CIVEO PTY LIMITED ACN 003 657 510, an Australian proprietary  limited company (the “Australian Borrower” and, together with the Parent Borrower and the U.S.  Borrower, the “Borrowers”), the Lenders (as defined in Article I), ROYAL BANK OF CANADA  (“RBC”), as administrative agent (in such capacity, the “Administrative Agent”) for the U.S.  Lenders, as U.S. collateral agent (in such capacity, the “U.S. Collateral Agent”) for the Lenders,  as administrative agent (in such capacity, the “Canadian Administrative Agent”) for the Canadian  Lenders (as defined in Article I) and as Canadian collateral agent (in such capacity, the “Canadian  Collateral Agent”) for the Lenders, and RBC EUROPE LIMITED (“RBC Europe”), as  administrative agent (in such capacity, the “Australian Administrative Agent”) for the Australian  Lenders (as defined in Article I) and as Australian collateral agent (in such capacity, the  “Australian Collateral Agent”) for the Lenders.  WHEREAS, the Parent Borrower, certain of its Subsidiaries, the lenders party thereto, and  the Administrative Agents are party to that certain Amended and Restated Syndicated Facility  Agreement, dated as of April 2, 2018 (such Syndicated Facility Agreement as amended prior to  the date hereof, the “Existing Credit Agreement”); and   WHEREAS, the Existing Credit Agreement is being refinanced pursuant to this  Agreement.  In consideration of the mutual covenants and agreements herein contained, the parties  hereto hereby agree as follows:  ARTICLE I    DEFINITIONS  SECTION 1.01 Defined Terms.  As used in this Agreement, the following terms shall  have the meanings specified below:  “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or  the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the  Alternate Base Rate.  “Acceptance Fee” shall mean a fee payable in Canadian dollars by the Parent Borrower to  the Canadian Administrative Agent for the account of a Canadian Lender with respect to the  acceptance of a B/A or the making of a B/A Equivalent Loan on the date of such acceptance or  loan, calculated on the face amount of the B/A or the B/A Equivalent Loan at the rate per annum  applicable on such date as set forth in the row labeled “Eurocurrency/B/A Spread” in the definition  of the term “Applicable Percentage” on the basis of the number of days in the applicable Contract  Period (including the date of acceptance and excluding the date of maturity) and a year of 365 days  (it being agreed that the rate per annum applicable to any B/A Equivalent Loan is equivalent to the  rate per annum otherwise applicable to the Bankers’ Acceptance which has been replaced by the  making of such B/A Equivalent Loan pursuant to Section 2.22).  





 






  2  US-DOCS\125501258.12  “Additional Permitted Amount” has the meaning set forth in the definition of Permitted  Refinancing Indebtedness.  “Adjusted LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any  Interest Period, an interest rate per annum (rounded upwards, if necessary, to the nearest whole  1/100 of 1%) equal to the product of (a) the LIBO Rate in effect for such Interest Period and (b)  Statutory Reserves; provided that if the rate determined above shall ever be less than zero, such  rate shall be deemed to be zero for the purposes of this Agreement.  “Administrative Agent” shall have the meaning assigned to such term in the preamble  hereto.  “Administrative Agents” shall mean the Administrative Agent, the Canadian  Administrative Agent and the Australian Administrative Agent.  “Administrative Questionnaire” shall mean an administrative questionnaire in a form  supplied from time to time by the Applicable Administrative Agent.  “Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any  UK Financial Institution.  “Affiliate” shall mean, when used 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; provided, however, that for purposes of Section 6.07,  the term “Affiliate” shall also include any person that directly or indirectly owns 5% or more of  any class of Equity Interests of the person specified or that is an officer or director of the person  specified.  “Agent Parties” shall have the meaning assigned to such term in Section 9.01(d).  “Agents” shall mean, collectively, the Administrative Agents and the Collateral Agents.  “Aggregate L/C Exposure” shall mean, at any time, the sum of the U.S. L/C Exposure, the  U.S. Dollar Equivalent of the Canadian L/C Exposure and the U.S. Dollar Equivalent of the  Australian L/C Exposure at such time.  “Agreement” shall have the meaning assigned to such term in the preamble hereto.  “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of  (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day  plus 1⁄2 of 1.0% and (c) the Adjusted LIBO Rate for a deposit in U.S. dollars with an Interest Period  of one month beginning on such day (or if such day is not a Business Day, the immediately  preceding Business Day) plus 1.0%.  Any change in the Alternate Base Rate due to a change in  the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective on  the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the  Adjusted LIBO Rate, respectively.  





 






  3  US-DOCS\125501258.12  “Alternative Currency” shall mean the Euro, Pounds Sterling, Japanese Yen, Singapore  Dollar, Hong Kong Dollar, Mexican Peso, Indian Rupee, Kuwaiti Dinar and each other currency  (other than U.S. dollars, Canadian dollars or Australian dollars) that is approved in accordance  with Section 1.05.  “Anti-Corruption Laws” shall mean all statutes, enactments, by-laws, rules, regulations,  notifications, circulars, case-law, orders, ordinances, guidelines, policies, directions and judgments  of any Governmental Authority, in relation to anti-corruption issued, administered or enforceable  against any Borrower or any of their Subsidiaries, including, without limitation, the FCPA and the  UKBA.  “Anti-Money Laundering Laws” shall mean all applicable financial recordkeeping and  reporting requirements and the money laundering and terrorist financing statutes and laws and the  rules and regulations thereunder and any related or similar rules, regulations or guidelines, which  in each case are issued, administered or enforced by any Governmental Authority having  jurisdiction over any Borrower or any of their Subsidiaries, or to which any Borrower or any of  their Subsidiaries is subject, including, without limitation, the Patriot Act and the Bank Secrecy  Act of 1970.  “Applicable Administrative Agent” shall mean (a) the Administrative Agent, with respect  to any U.S. Loan or U.S. Letter of Credit, (b) the Canadian Administrative Agent, with respect to  any Canadian Loan or Canadian Letter of Credit and (c) the Australian Administrative Agent, with  respect to any Australian Revolving Credit Loan or Australian Letter of Credit.  “Applicable Borrower” shall mean (a) the Parent Borrower, with respect to the Canadian  Term Loan Facility or the Canadian Revolving Credit Facility, (b) the U.S. Borrower, with respect  to the U.S. Revolving Credit Facility, and (c) the Australian Borrower, with respect to the  Australian Revolving Credit Facility.  “Applicable Collateral Agent” shall mean (a) the U.S. Collateral Agent, with respect to the  U.S. Security Documents and the U.S. Collateral, (b) the Canadian Collateral Agent, with respect  to the Canadian Security Documents and the Canadian Collateral or (c) the Australian Collateral  Agent, with respect to the Australian Security Documents and the Australian Collateral.  “Applicable Issuing Bank” shall mean (a) RBC or any other Issuing Bank that has issued,  or has a commitment to issue, U.S. Letters of Credit, (b) RBC or any other Issuing Bank that has  issued, or has a commitment to issue, Canadian Letters of Credit, or (c) RBC Europe, or any other  Issuing Bank that has issued, or has a commitment to issue, Australian Letters of Credit.  “Applicable Lender” shall mean (a) when used with respect to the U.S. Revolving Credit  Facility, the Canadian Term Loan Facility, the Canadian Revolving Credit Facility or the  Australian Revolving Credit Facility, a Lender that has a Commitment or holds a Loan with respect  to such Facility, (b) with respect to any Letter of Credit, (i) the Issuing Banks and (ii) if any L/C  Disbursements have been made by an Issuing Bank and not reimbursed or refinanced by Section  2.02(g), the Canadian Revolving Lenders, the U.S. Revolving Lenders or the Australian Lenders,  as the case may be, and (c) with respect to the U.S. Swing Line Sublimit or the Canadian Swing  Line Sublimit, the Applicable Swing Line Lender.  





 






  4  US-DOCS\125501258.12  “Applicable Percentage” shall mean, for any day, with respect to any Eurocurrency Loan,  ABR Loan, B/A Loan, Canadian Prime Rate Loan, U.S. Base Rate Loan, BBSY Rate Loan or the  Commitment Fee, the applicable percentage set forth below under the applicable caption, based  upon the Total Net Leverage Ratio as of the relevant date of determination:  Total Net Leverage Ratio  Eurocurrency/  BBSY Rate/B/A  Spread  ABR, Canadian  Prime Rate and  U.S. Base Rate  Spread  Commitment Fee  Percentage  Category 1  Less than 1.50 to 1.00 .............................  3.00% 2.00% 0.675%  Category 2  Greater than or equal to 1.50 to 1.00 but less  than 2.00 to 1.00  3.25% 2.25% 0.731%  Category 3  Greater than or equal to 2.00 to 1.00 but  less than 2.50 to 1.00 ...............................  3.50% 2.50% 0.788%  Category 4  Greater than or equal to 2.50 to 1.00 but  less than 3.00 to 1.00 ...............................  3.75% 2.75% 0.844%  Category 5  Greater than or equal to 3.00 to 1.00 but  less than 3.50 to 1.00 ...............................  4.00% 3.00% 0.900%            Each change in the Applicable Percentage resulting from a change in the Total Net  Leverage Ratio shall be effective with respect to all Loans and Letters of Credit outstanding on  and after the date of delivery to the Administrative Agent of the financial statements required by  Section 5.04(a) or (b) and the Compliance Certificate required by Section 5.04(c), respectively,  indicating such change until the date immediately preceding the next date of delivery of such  financial statements indicating another such change; provided, however, that at any time during  which the Parent Borrower has failed to deliver when due the financial statements required by  Section 5.04(a) or (b) and the Compliance Certificate required by Section 5.04(c), respectively,  the Total Net Leverage Ratio shall be deemed to be in Category 5 for purposes of determining the  Applicable Percentage.  Notwithstanding the foregoing, as of the Closing Date, the Applicable  Percentage shall be based on Category 3 until adjusted in accordance with this paragraph.   “Applicable Pro Rata Percentage” shall mean the Canadian Applicable Pro Rata  Percentage, the Australian Revolving Pro Rata Percentage or the U.S. Revolving Pro Rata  Percentage, as the context may require.  “Applicable Required Lenders” shall mean (a) the Required U.S. Lenders with respect to  the U.S. Revolving Credit Facility, (b) the Required Canadian Revolving Lenders with respect to  the Canadian Revolving Credit Facility, (c) the Required Canadian Term Lenders with respect to  the Canadian Term Loan Facility, or (d) the Required Australian Lenders with respect to the  Australian Revolving Credit Facility.  “Applicable Swing Line Lender” shall mean (a) with respect to the U.S. Swing Line  Sublimit, (i) the U.S. Swing Line Lender and (ii) if any U.S. Swing Line Loans are outstanding  





 






  5  US-DOCS\125501258.12  and have not been refinanced by a U.S. Revolving Borrowing pursuant to Section 2.23(c)(ii), the  U.S. Revolving Lenders and (b) with respect to the Canadian Swing Line Sublimit, the Canadian  Swing Line Lender and (ii) if any Canadian Swing Line Loans are outstanding and have not been  refinanced by a Canadian Revolving Borrowing pursuant to Section 2.23(c)(ii), the Canadian  Revolving Lenders.  “Approved Fund” shall mean 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.  “Asset Sale” shall mean the sale, transfer or other disposition (by way of merger, casualty,  condemnation or otherwise) of any or all of the property of the Parent Borrower or any of its  Subsidiaries to any person other than the Parent Borrower or any of its Subsidiaries (other than (a)  Equity Interests in the Parent Borrower or directors’ qualifying shares in any Subsidiary,  (b)  inventory, damaged, obsolete or worn out assets, scrap and Permitted Investments, in each  case disposed of in the ordinary course of business, (c) dispositions between or among Subsidiaries  that are not Loan Parties or (d) Specified Dispositions); provided that any asset sale or series of  related asset sales described above having a value not in excess of U.S.$1,000,000 shall be deemed  not to be an “Asset Sale” for purposes of this Agreement.  “Assignee Group” shall mean two or more Eligible Assignees that are Affiliates of one  another or two or more Approved Funds managed by the same investment advisor.  “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a  Lender and an assignee (with the consent of any party whose consent is required by Section 9.04)  and accepted by the Applicable Administrative Agent, in substantially the form of Exhibit A or  such other form as shall be approved by the Applicable Administrative Agent.  “Associate” shall mean an “associate” as defined in section 128F(9) of the Australian Tax  Act.  “Attorneys” shall have the meaning assigned to such term in Section 1.03(b).  “Australian Administrative Agent” shall have the meaning assigned to such term in the  preamble hereto.   “Australian Borrower” shall have the meaning assigned to such term in the preamble  hereto.  “Australian Collateral” shall mean all “Collateral” or “Secured Property” as defined in any  Australian Security Document.  “Australian Collateral Agent” shall have the meaning assigned to such term in the  preamble hereto.  “Australian Commitment Fee” shall have the meaning assigned to such term in  Section 2.05(a).  





 






  6  US-DOCS\125501258.12  “Australian Corporations Act” shall mean the Corporations Act 2001 (Cth).  “Australian Dollar Equivalent” shall mean, on any date of determination, with respect to  any amount in U.S. dollars, the equivalent in Australian dollars of such amount, determined by the  Administrative Agent using the Exchange Rate then in effect.  “Australian dollars”, “AUD” and “AUD$” shall mean the lawful money of the  Commonwealth of Australia.  “Australian GST” shall have the meaning given in A New Tax System (Goods and Services  Tax) Act 1999 (Cth).  “Australian GST Liability” shall have the meaning assigned to such term in Section 2.19(j).  “Australian Guarantee Agreement” shall mean a Deed of Guarantee and Indemnity,  substantially in the form of Exhibit C-1, in favor of the Australian Collateral Agent, for the benefit  of the Secured Parties.  “Australian L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn  amount of all outstanding Australian Letters of Credit at such time plus (b) the aggregate principal  amount of all L/C Disbursements in respect of Australian Letters of Credit that have not yet been  reimbursed at such time.  The Australian L/C Exposure of any Australian Lender at any time shall  mean its Australian Revolving Pro Rata Percentage of the aggregate Australian L/C Exposure at  such time.  “Australian L/C Participation Fee” shall have the meaning assigned to such term in Section  2.05(c).  “Australian Lenders” shall mean Lenders having Australian Revolving Commitments,  outstanding Australian Revolving Credit Loans or participations in Australian Letters of Credit  pursuant to Section 2.21(d).  “Australian Loan Parties” shall mean the Australian Borrower and the Australian  Subsidiary Guarantors.  “Australian Revolving Borrowing” shall mean a group of Australian Revolving Credit  Loans of a single Type made, converted or continued by the Australian Lenders on a single date  and as to which a single Interest Period is in effect.  “Australian Revolving Commitment” shall mean, with respect to each Australian Lender,  the commitment of such Australian Lender to (a) make Australian Revolving Credit Loans  hereunder and (b) purchase participations in the Australian L/C Exposure, in an aggregate principal  amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under  the caption “Australian Revolving Commitment”, or in the Assignment and Acceptance or Lender  Joinder Agreement pursuant to which such Australian Lender assumed its Australian Revolving  Commitment, as applicable, as the same may be (i) increased from time to time pursuant to Section  2.25, (ii) reduced from time to time pursuant to Section 2.09 and (iii) reduced or increased from  time to time pursuant to assignments by or to such Australian Lender pursuant to Section 9.04.   





 






  7  US-DOCS\125501258.12  The aggregate amount of the Australian Revolving Commitments as of the Closing Date is  U.S.$35,000,000.  “Australian Revolving Credit Exposure” shall mean, with respect to any Australian Lender  at any time, the aggregate principal amount at such time of all outstanding Australian Revolving  Credit Loans of such Lender denominated in U.S. dollars, plus the U.S. Dollar Equivalent of the  aggregate principal amount at such time of all outstanding Australian Revolving Credit Loans of  such Australian Lender denominated in Australian dollars, plus the U.S. Dollar Equivalent of the  aggregate amount at such time of such Australian Lender’s Australian Revolving Pro Rata  Percentage of the Australian L/C Exposure.  “Australian Revolving Credit Facility” shall mean at any time the aggregate amount of the  Australian Revolving Commitments of the Australian Lenders at such time.  “Australian Revolving Credit Loans” shall mean (a) the Australian dollar-denominated  Revolving Credit Loans made by the Australian Lenders to the Australian Borrower hereunder and  (b) the U.S. dollar-denominated Revolving Credit Loans made by the Australian Lenders to the  Australian Borrower.  Each Australian Revolving Credit Loan denominated in Australian dollars  shall be a BBSY Rate Loan.  Each Australian Revolving Credit Loan denominated in U.S. dollars  and made to the Australian Borrower shall be a Eurocurrency Loan.  “Australian Revolving Pro Rata Percentage” of any Australian Lender, subject to any  adjustment as provided in Section 2.24(c) or 2.25(a), shall mean the percentage of the aggregate  Australian Revolving Commitments represented by such Australian Lender’s Australian  Revolving Commitment; provided that if the Australian Revolving Commitments have terminated,  the Australian Revolving Pro Rata Percentages of the Australian Lenders shall be determined  based upon the Australian Revolving Commitments most recently in effect, giving effect to any  assignments.  “Australian Security Deed” shall mean any Australian General Security Deed governed by  the laws of New South Wales, Australia, substantially in the form of Exhibit E-1, among the  Australian Borrower and the Australian Subsidiary Guarantors, as grantors, and the Australian  Collateral Agent for the benefit of the Secured Parties.  “Australian Security Documents” shall mean the Australian Security Deed, the Australian  Security Trust Deed and each other Security Document to which the Australian Borrower,  or any  Australian Subsidiary Guarantor is a party and that purports to grant a Lien in the assets of any  such person in favor of the Australian Collateral Agent for the benefit of the Secured Parties.  “Australian Security Trust Deed” shall mean the security trust deed granted by the  Australian Collateral Agent, as security trustee.  “Australian Subsidiaries” shall mean the Subsidiaries of the Parent Borrower (other than  the Australian Borrower) organized under the laws of the Commonwealth of Australia or any state,  territory or other political subdivision thereof other than any U.S. Owned Subsidiary.  





 






  8  US-DOCS\125501258.12  “Australian Subsidiary Guarantor” shall mean each Australia Subsidiary listed on  Schedule 1.01(d), and each other Australian Subsidiary that is or becomes a party to an Australian  Guarantee Agreement.  “Australian Tax Act” shall mean the Income Tax Assessment Act 1936 (Cth) (Australia)  or the Income Tax Assessment Act 1997 (Cth) (Australia) as applicable.   “Australian Withholding Tax” shall mean any Australian Tax required to be withheld or  deducted from any interest or other payment under Division 11A of Part III of the Tax Act or  Subdivision 12-F of Schedule 1 to the Taxation Administration Act 1953 (Commonwealth of  Australia).  “AutoBorrow Agreement” shall mean any agreement providing for automatic borrowing  services between a Loan Party and a Swing Line Lender.  “B/A Discount Rate” shall mean:  (a) with respect to an issue of Bankers’ Acceptances having the same Contract  Period accepted by a Lender that is a Canadian chartered bank listed on Schedule I of the Bank Act  (Canada) (other than Canadian Western Bank), the CDOR Rate; and  (b) with respect to an issue of Bankers’ Acceptances having the same Contract  Period accepted by Canadian Western Bank or a Lender that is not a bank under Schedule I to the  Bank Act (Canada), the CDOR Rate plus 0.10%;  Notwithstanding the foregoing, the B/A Discount Rate for purposes of this Agreement shall at no  time be less than 0%.  “B/A Equivalent Loan” shall have the meaning assigned to such term in Section 2.22(h).  “B/A Loan” shall mean a Borrowing comprised of one or more Bankers’ Acceptances or,  as applicable, B/A Equivalent Loans.  For greater certainty, all provisions of this Agreement that  are applicable to Bankers’ Acceptances are also applicable, mutatis mutandis, to B/A Equivalent  Loans.  “Bail-In Action” shall mean 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” shall mean:   (a) with respect to any EEA Member Country implementing Article 55 of Directive  2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law for such EEA Member Country from time to time which is described in the EU  Bail-In Legislation Schedule; and   (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act  2009 (as amended from time to time) and any other law, regulation or rule applicable in the United  Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial  





 






  9  US-DOCS\125501258.12  institutions or their respective Affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Bankers’ Acceptance” and “B/A” shall mean a non-interest bearing draft denominated in  Canadian dollars, drawn by the Parent Borrower, and accepted by a Canadian Lender in accordance  with this Agreement, and may include a depository note within the meaning of the Depository Bills  and Notes Act (Canada) and a bill of exchange within the meaning of the Bills of Exchange Act  (Canada).    “Banking Services” shall mean each and any of the following bank services provided to the  Parent Borrower or any Subsidiary by any Lender or any Affiliate of a Lender: (a) commercial  credit cards, (b) stored value cards and (c) treasury management services (including, without  limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts  and interstate depository network services).  “Banking Services Obligations” shall mean any and all obligations of the Parent Borrower  or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising,  evidenced or acquired (including all renewals, extensions and modifications thereof and  substitutions therefor) in connection with Banking Services. Notwithstanding anything to the  contrary contained herein, “Banking Services Obligations” shall not include the Excluded Swap  Obligations  “BBSY Rate” shall mean, for the relevant Interest Period: (a) the rate per annum which is  equal to the average bid rate displayed at or about 10:30 a.m. (Sydney time) on the date that is two  Business Days prior to the first day of that period on the Bloomberg BBSY page for a term  equivalent to that period; or (b) if a rate for a term cannot be determined in accordance with clause  (a) above because a rate is not displayed for a term equivalent to that period or if the basis on  which that rate is displayed is changed and in the opinion of the Australian Administrative Agent  ceases to reflect the Australian Lenders’ cost of funding to the same extent as of the date of this  Agreement, the BBSY Rate for that period will be the rate determined by the Australian  Administrative Agent at or about 10:30 a.m. (Sydney time) on the day of calculation (which day  shall be two Business Days prior to the first day of that period) to be the average of the buying  rates quoted to the Australian Administrative Agent by three Reference Banks selected by the  Australian Administrative Agent (after consultation with the Australian Borrower) at or about that  time on that date for bills of exchange that are accepted by an Australian bank and that have a term  equivalent to the relevant period.  “Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in Section 3(3)  of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code  to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes  of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the  Code) the assets of any such “employee benefit plan” or “plan”.  “BHC Act Affiliate” of a party shall mean an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  





 






  10  US-DOCS\125501258.12  “Bilateral Agreement” shall mean that AUD$1,000,000 Guarantee Line provided by the  Bilateral Lender to the Australian Borrower pursuant to the Facility Letter, dated as of August 20,  2020 (the “Facility Letter”) by and among the Australian Borrower, the Bilateral Lender and The  Hongkong and Shanghai Banking Corporation ABN 65 117 925 970, as amended or supplemented  from time to time.  “Bilateral Obligations” shall mean all the liabilities of the Australian Borrower to the  Bilateral Lender under or by reason of the Bilateral Agreement, and includes any liabilities or  obligations which are liquidated or unliquidated, are present, prospective or contingent, are in  existence before or come into existence on or after the date of this Agreement or relate to the  payment of money or the performance or omission of any act; provided that, the aggregate  principal amount of Indebtedness included for purposes of determining Australian Bank Guarantee  Obligations under this Agreement or any other Loan Document shall not exceed AUD$1,000,000.   “Bilateral Lender” shall mean HSBC Bank Australia Limited ABN 48 006 434 162 in its  capacity as lender under the Bilateral Agreement or any other Lender that succeeds HSBC Bank  Australia Limited ABN 48 006 434 162 as a party to the Bilateral Agreement.   “Board” shall mean the Board of Governors of the Federal Reserve System of the United  States of America.  “Borrower Materials” shall have the meaning assigned to such term in Section 5.04.  “Borrowers” shall have the meaning assigned to such term in the preamble hereto.  “Borrowing” shall mean a Canadian Revolving Borrowing, a Canadian Term Borrowing,  an Australian Revolving Borrowing, a U.S. Revolving Borrowing or a Swing Line Borrowing.  “Borrowing Request” shall mean a request by a Borrower in accordance with the terms of  Section 2.03 and substantially in the form of Exhibit B-1, B-2, B-3 or B-4, as applicable, or such  other form as shall be reasonably approved by the Applicable Administrative Agent.  “Breakage Event” shall have the meaning assigned to such term in Section 2.15.  “Business Day” shall mean (a) when used in connection with a Loan, Letter of Credit or  payment denominated in U.S. dollars, any day other than a Saturday, Sunday or any day on which  banks in Houston and New York City are authorized or required by law to close; provided,  however, that when used in connection with a Eurocurrency Loan, the term “Business Day” shall  also exclude any day on which banks are not open for dealings in deposits in U.S. dollars in the  London interbank market, (b) when used in connection with the Canadian Term Loan, a Canadian  Revolving Credit Loan, a Canadian Letter of Credit or a payment under the Canadian Term Loan  Facility or the Canadian Revolving Credit Facility, any day other than a Saturday, Sunday or any  day on which banks in Toronto, Ontario, Calgary, Alberta and Montreal, Quebec are authorized or  required by law to close, (c) when used in connection with an Australian Revolving Credit Loan,  Australian Letter of Credit or payment denominated in Australian dollars or U.S. dollars under the  Australian Revolving Credit Facility, any day other than a Saturday, Sunday or any day on which  banks in Houston, New York City, Singapore, London, Hong Kong or Sydney, Australia are  authorized or required by law to close and (d) when used in connection with a Letter of Credit or  





 






  11  US-DOCS\125501258.12  payment denominated in an Alternative Currency, any day on which banks are open for foreign  exchange business in the principal financial center of the country of such Alternative Currency  and on which the relevant office of the Applicable Issuing Bank is not authorized or required by  law to close.   “Canadian Administrative Agent” shall have the meaning assigned to such term in the  preamble hereto.  “Canadian Applicable Pro Rata Percentage” shall mean with respect to any Canadian  Revolving Lender or Canadian Term Lender, the Canadian Revolving Pro Rata Percentage or the  Canadian Term Loan Pro Rata Percentage, respectively.  “Canadian Benefit Plans” shall mean all employee benefit plans of any nature or kind  whatsoever that are not Canadian Pension Plans or Defined Benefit Plans and are maintained or  contributed to by the Parent Borrower or any of the Canadian Subsidiaries, in each case covering  employees in Canada.   “Canadian Collateral” shall mean all “Collateral” as defined in any Canadian Security  Document.  “Canadian Collateral Agent” shall have the meaning assigned to such term in the preamble  hereto.  “Canadian Commitment Fees” shall have the meaning assigned to such term in  Section 2.05(a)(ii).  “Canadian Dollar Equivalent” shall mean, on any date of determination, with respect to  any amount in U.S. dollars, the equivalent in Canadian dollars of such amount, determined by the  Administrative Agent using the Exchange Rate, then in effect.  “Canadian dollars” and “C$” shall mean lawful currency of Canada.  “Canadian Facility” shall mean either the Canadian Term Loan Facility or the Canadian  Revolving Credit Facility.  “Canadian Guarantee Agreement” shall mean the Canadian Guarantee Agreement,  substantially in the form of Exhibit C-2, by the Parent Borrower and the Canadian Subsidiary  Guarantors in favor of the Canadian Collateral Agent, for the benefit of the Secured Parties.  “Canadian L/C Exposure” shall mean at any time the sum of (a) the U.S. Dollar Equivalent  of the aggregate undrawn amount of all outstanding Canadian Letters of Credit at such time plus  (b) the U.S. Dollar Equivalent of the aggregate principal amount of all L/C Disbursements in  respect of Canadian Letters of Credit that have not yet been reimbursed at such time.  The Canadian  L/C Exposure of any Canadian Revolving Lender at any time shall mean its Canadian Revolving  Pro Rata Percentage of the aggregate Canadian L/C Exposure at such time.  “Canadian L/C Participation Fee” shall have the meaning assigned to such term in Section  2.05(c).  





 






  12  US-DOCS\125501258.12  “Canadian Lenders” shall mean Canadian Revolving Lenders and Canadian Term  Lenders, as applicable.  “Canadian Loan” shall mean a Canadian Revolving Credit Loan or a Canadian Term Loan.  “Canadian Loan Parties” shall mean the Parent Borrower and the Canadian Subsidiary  Guarantors.   “Canadian Pension Plans” shall mean each plan that is considered to be a pension plan  for the purposes of any applicable pension benefits standards statute and/or regulation in Canada  established, maintained or contributed to by the Parent Borrower or any of the Canadian  Subsidiaries for its employees or former employees, but excluding the Defined Benefit Plans.  “Canadian Pledge Agreement” shall mean the Canadian Pledge Agreement, substantially  in the form of Exhibit D-1, among the Parent Borrower and each Canadian Subsidiary of the Parent  Borrower party thereto, as pledgors, and the Canadian Collateral Agent, for the benefit of the  Secured Parties.  “Canadian Prime Rate” shall mean, on any day, the annual rate of interest equal to the  greater of: (a) the annual rate of interest announced from time to time by the Canadian  Administrative Agent as its prime rate in effect at its principal office in Toronto, Ontario on such  day for determining interest rates on Canadian dollar-denominated commercial loans made in  Canada; and (b) the annual rate of interest equal to the sum of (i) the CDOR Rate in effect on such  day and (ii) 1%; provided that if the rate determined above shall ever be less than zero, such rate  shall be deemed to be zero for the purposes of this Agreement.  When used in reference to any  Loan or Borrowing, “Canadian Prime Rate” refers to whether such Loan, or the Loans comprising  such Borrowing, are bearing interest at a rate determined by reference to the Canadian Prime Rate.  “Canadian Revolving Borrowing” shall mean a group of Canadian Revolving Credit Loans  of a single Type made, converted or continued by the Canadian Revolving Lenders on a single  date and, in the case of a Eurocurrency Borrowing, as to which a single Interest Period is in effect  and, in the case of a B/A Borrowing, as to which a single Contract Period is in effect.   “Canadian Revolving Commitment” shall mean, with respect to each Canadian Revolving  Lender, the commitment of such Canadian Revolving Lender to (a) make Canadian Revolving  Credit Loans hereunder, (b) purchase participations in the Canadian L/C Exposure and (c)  purchase participations in Canadian Swing Line Loans, in an aggregate principal amount not to  exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption  “Canadian Revolving Commitment”, or in the Assignment and Acceptance or Lender Joinder  Agreement pursuant to which such Canadian Revolving Lender assumed its Canadian  Revolving  Commitment, as applicable, as the same may be (i) increased from time to time pursuant to Section  2.25, (ii) reduced from time to time pursuant to Section 2.09 and (iii) reduced or increased from  time to time pursuant to assignments by or to such Canadian Revolving Lender pursuant to  Section 9.04.  The aggregate amount of the Canadian Revolving Commitments as of the Closing  Date is U.S.$155,000,000.   “Canadian Revolving Credit Exposure” shall mean, with respect to any Canadian  Revolving Lender at any time, the aggregate principal amount at such time of all outstanding  





 






  13  US-DOCS\125501258.12  Canadian Revolving Credit Loans of such Lender denominated in U.S. dollars, plus the U.S. Dollar  Equivalent of the aggregate principal amount at such time of all outstanding Canadian Revolving  Credit Loans of such Canadian Revolving Lender denominated in Canadian dollars, plus the U.S.  Dollar Equivalent of the aggregate amount at such time of such Canadian Revolving Lender’s  Canadian Revolving Pro Rata Percentage of the Canadian L/C Exposure plus such Canadian  Revolving Lender’s Canadian Revolving Pro Rata Percentage of the outstanding amount of all  Canadian Swing Line Loans.  “Canadian Revolving Credit Facility” shall mean at any time the aggregate amount of the  Canadian Revolving Commitments of the Canadian Revolving Lenders at such time.  “Canadian Revolving Credit Loans” shall mean (a) the Canadian dollar-denominated  Revolving Credit Loans (including the aggregate face amount of outstanding B/As) made by the  Canadian Revolving Lenders to the Parent Borrower hereunder and (b) the U.S. dollar- denominated Revolving Credit Loans made by the Canadian Revolving Lenders to the Parent  Borrower.  Each Canadian Revolving Credit Loan denominated in Canadian dollars shall be a  Canadian Prime Rate Loan or a B/A Loan.  Each Canadian Revolving Credit Loan denominated  in U.S. dollars and made to the Parent Borrower shall be a Eurocurrency Loan or a U.S. Base Rate  Loan.  “Canadian Revolving Lenders” shall mean Lenders having Canadian Revolving  Commitments, outstanding Canadian Revolving Credit Loans, or participations in Canadian  Letters of Credit pursuant to Section 2.21(d) or in Canadian Swing Line Loans pursuant to Section  2.23.    “Canadian Revolving Pro Rata Percentage” of any Canadian Revolving Lender, subject  to any adjustment as provided in Section 2.24(c) or 2.25(a), shall mean the percentage of the  aggregate Canadian Revolving Commitments represented by such Canadian Revolving Lender’s  Canadian Revolving Commitment; provided that if the Canadian Revolving Commitments have  terminated, the Canadian Revolving Pro Rata Percentages of the Canadian Revolving Lenders  shall be determined based upon the Canadian Revolving Commitments most recently in effect,  giving effect to any assignments  “Canadian Security Agreement” shall mean the Canadian Security Agreement,  substantially in the form of Exhibit E-2, among each Canadian Subsidiary of the Parent Borrower  party thereto, as grantors, and the Canadian Collateral Agent, for the benefit of the Secured Parties.  “Canadian Security Documents” shall mean the Canadian Security Agreement, the  Canadian Pledge Agreement, and each other Security Document to which the Parent Borrower,  any Canadian Subsidiary Guarantor or any other Subsidiary of the Parent Borrower is a party and  that purports to grant a Lien in the assets of any such person in favor of the Canadian Collateral  Agent for the benefit of the Secured Parties.  “Canadian Subsidiaries” shall mean the Subsidiaries organized under the laws of Canada  or any province, territory or other political subdivision thereof, other than any U.S. Owned  Subsidiary.  





 






  14  US-DOCS\125501258.12  “Canadian Subsidiary Guarantor” shall mean each Canadian Subsidiary listed on  Schedule 1.01(c), and each other Canadian Subsidiary that is or becomes a party to the Canadian  Guarantee Agreement.  “Canadian Swing Line Borrowing” shall mean a borrowing of a Canadian Swing Line Loan  pursuant to Section 2.23(a)(ii) or, if an AutoBorrow Agreement is in effect, any transfer of funds  pursuant to such AutoBorrow Agreement.  “Canadian Swing Line Lender” shall mean RBC in its capacity as provider of Canadian  Swing Line Loans, or any successor swing line lender hereunder.  “Canadian Swing Line Loan” shall have the meaning assigned to such term in Section  2.23(a)(ii).  “Canadian Swing Line Sublimit” shall mean U.S.$25,000,000.  The Canadian Swing Line  Sublimit is part of, and not in addition to, the Canadian Revolving Commitments.  “Canadian Term Borrowing” shall mean a group of Canadian Term Loans of a single Type  made, converted or continued by the Canadian Term Lenders on a single date and, in the case of a  B/A Loan, as to which a single Contract Period is in effect.  “Canadian Term Commitment” shall mean, with respect to each Canadian Term Lender,  the commitment of such Canadian Term Lender to make a single Canadian Term Loan to the  Parent Borrower on the Closing Date in an aggregate principal amount not to exceed the Canadian  dollar amount set forth opposite such Lender’s name on Schedule 2.01.  The aggregate amount of  the Canadian Term Commitments as of the Closing Date is C$100,000,000.  “Canadian Term Lender” shall mean any Lender that has a Canadian Term Commitment  or holds a Canadian Term Loan.  “Canadian Term Loan” shall mean the Canadian dollar-denominated term loans made by  the Canadian Term Lenders to the Parent Borrower.  “Canadian Term Loan Facility” shall mean the aggregate principal amount of the Canadian  Term Loans of all Canadian Term Lenders outstanding at such time.  “Canadian Term Loan Pro Rata Percentage” with respect to any Canadian Term Lender,  the percentage of the aggregate principal amount of the Canadian Term Loans represented by such  Canadian Term Lender’s Canadian Term Loans at such time.  “Capital Lease Obligations” of any person shall mean the obligations of such person to  pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real  or personal property, or a combination thereof, which obligations are required to be classified and  accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of  such obligations shall be the capitalized amount thereof determined in accordance with GAAP.  “Cash Collateralize” shall mean to pledge and deposit with or deliver to the Applicable  Collateral Agent, for the benefit of the Secured Parties, as collateral for the U.S. L/C Exposure,  





 






  15  US-DOCS\125501258.12  the Canadian L/C Exposure or the Australian L/C Exposure, as applicable, cash or deposit account  balances pursuant to documentation in form and substance reasonably satisfactory to the  Applicable Borrower, the Applicable Collateral Agent and the Applicable Issuing Banks (which  documentation is hereby consented to by the Lenders).  Derivatives of such term have  corresponding meanings.  “CDOR Rate” shall mean, for each day in any period, the annual rate of interest that is the  rate based on an average rate applicable to Canadian dollar bankers’ acceptances for a term equal  to the term of the relevant Contract Period (or for a term of one month for purposes of determining  the Canadian Prime Rate) appearing on the “Refinitiv Screen Canadian Dollar Offered Rate  (CDOR) Page” (or any display substituted therefor) of Reuters Monitor Money Rates Services (or  any successor thereto or Affiliate thereof) at approximately 10:00 a.m. (Standard Time), on such  date, or if such date is not a Business Day, on the immediately preceding Business Day; provided  that, if the rate determined above shall ever be less than zero, such rate shall be deemed to be zero  for the purposes of this Agreement.  “CDOR Scheduled Successor Rate” shall have the meaning provided in Section 2.08(c).  “CDOR Scheduled Unavailability Date” shall have the meaning provided in Section  2.08(c).  “CDS” shall have the meaning assigned to such term in Section 2.22(c).  “Change in Control” shall mean (a)  the acquisition of ownership, directly or indirectly,  beneficially or of record, by any person or group (within the meaning of the Securities Exchange  Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) of Equity Interests  representing more than 35% of the aggregate ordinary voting power represented by the issued and  outstanding Equity Interests of the Parent Borrower; (b) the failure by the Parent Borrower to own,  directly or indirectly, beneficially and of record, 100% of the issued and outstanding Equity  Interests of the U.S. Borrower; or (c)  the failure by the Parent Borrower to own, directly or  indirectly, beneficially and of record, 100% of the issued and outstanding Equity Interests of the  Australian Borrower.  “Change in Law” shall mean (a) the adoption of any law, rule, regulation or treaty after the  Closing Date, (b) any change in any law, rule or regulation or in the administration, interpretation,  implementation or application thereof by any Governmental Authority after the Closing Date or  (c) compliance by any Lender or an Issuing Bank (or, for purposes of Section 2.13, by any lending  office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with  any request, guideline or directive (whether or not having the force of law) of any Governmental  Authority made or issued after the Closing Date; provided however, for purposes of this Agreement  and notwithstanding anything 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.  





 






  16  US-DOCS\125501258.12   “Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such  Loan, or the Loans comprising such Borrowing, are Canadian Revolving Credit Loans, Canadian  Term Loans, Australian Revolving Credit Loans or U.S. Revolving Credit Loans, and (b) any  Commitment, refers to whether such Commitment is a Canadian Revolving Commitment,  Canadian Term Commitment, Australian Revolving Commitment or a U.S. Revolving  Commitment.  “Closing Date” shall mean the date upon which all of the conditions set forth in Sections  4.01 and 4.02 are satisfied or waived in accordance with Section 9.08(b).  “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.  “Collateral” shall mean, collectively, all of the U.S. Collateral, the Canadian Collateral  and the Australian Collateral.  “Collateral Agents” shall mean, collectively, the U.S. Collateral Agent, the Canadian  Collateral Agent and the Australian Collateral Agent.  “Commitment” shall mean, with respect to any Lender, such Lender’s U.S. Revolving  Commitment, Canadian Revolving Commitment, Canadian Term Commitment, Australian  Revolving Commitment or any Incremental Revolving Commitment, and “Commitments” shall  mean the U.S. Revolving Commitments, the Canadian Revolving Commitments, the Canadian  Term Commitments, the Australian Revolving Commitments and any Incremental Revolving  Commitments.  “Commitment Fees” shall have the meaning assigned to such term in Section 2.05(a)(iii).  “Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. Section 1  et seq.), as amended from time to time, and any successor statute.   “Compliance Certificate” shall have the meaning assigned to such term in Section 5.04(c).  “Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or  measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.  “Consolidated EBITDA” shall mean, for any period, EBITDA of the Parent Borrower and  the Subsidiaries for such period, all determined on a consolidated basis.  “Consolidated Interest Expense” shall mean, for any person for any period, the sum of  (a) the interest expense (including imputed interest expense in respect of Capital Lease Obligations  but excluding the amortization of debt discount and debt issuance costs) of such person for such  period, determined on a consolidated basis in accordance with GAAP, plus (b) any interest accrued  during such period in respect of Indebtedness of such person that is required to be capitalized rather  than included in consolidated interest expense for such period in accordance with GAAP. For  purposes of the foregoing, interest expense shall be determined after giving effect to any net  payments made or received by such person with respect to interest rate Hedging Agreements.  





 






  17  US-DOCS\125501258.12  “Consolidated Net Income” shall mean, for any person for any period, the net income or  loss of such person for such period determined on a consolidated basis in accordance with GAAP;  provided that there shall be excluded (a) the income of any subsidiary of such person to the extent  that the declaration or payment of dividends or similar distributions by such subsidiary of that  income is not at the time permitted by operation of the terms of its charter or any agreement,  instrument, judgment, decree, statute, rule or governmental regulation applicable to such  subsidiary, (b) the income of any person in which any other person (other than such person or a  wholly owned subsidiary thereof or any director holding qualifying shares in accordance with  applicable law) has a joint interest, except to the extent of the amount of dividends or other  distributions actually paid to such person or a wholly owned subsidiary thereof by such person  during such period, and (c) any gains or losses attributable to sales of assets out of the ordinary  course of business.  For the avoidance of doubt, Consolidated Net Income shall include all amounts  recognized as income during such period from the Canada Emergency Wage Subsidy program  (but shall deduct, if applicable, any such amounts that were required to be repaid during such  period as a result of program non-compliance).  “Consolidated Net Worth” shall mean, at any time, the net worth or total shareholders’  equity of the Parent Borrower and its subsidiaries on a consolidated basis determined in accordance  with GAAP.  “Contract Period” shall mean the term of a B/A Loan selected by the Parent Borrower in  accordance with Section 2.22, commencing on the date of such B/A Loan and expiring on a  Business Day which shall be either 1, 2 or 3 months thereafter, subject to market availability (or,  subject to the agreement of the Applicable Lenders, a longer or shorter period), provided that (a)  subject to clause (b) below, each such period shall be subject to such extensions or reductions as  may be agreed by the Applicable Lenders to ensure that each Contract Period shall expire on a  Business Day, and (b) no Contract Period shall extend beyond the Maturity Date.  “Control” shall mean 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 ownership of voting  securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have  meanings correlative thereto.  “Covered Entity” shall mean any of the following:  (a) a “covered entity” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 252.82(b);  (b) a “covered bank” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 47.3(b); or  (c) a “covered FSI” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 382.2(b).  “Covered Party” shall have the meaning provided in Section 9.25.    “Credit Event” shall have the meaning assigned to such term in Section 4.01.  





 






  18  US-DOCS\125501258.12  “Customary Junior Lien Intercreditor Agreement” shall mean an intercreditor agreement,  reasonably acceptable to the Loan Party incurring Indebtedness under the indenture or agreement  pursuant to which a Qualified Offering is issued, incurred or otherwise obtained, the Agents and  the Required Lenders, to be entered into by and among such Loan Party, the other Loan Parties  party thereto, the Agents and the trustee, administrative agent, collateral agent, security agent or  similar agent and under such indenture or agreement pursuant to which such Qualified Offering is  issued, incurred or otherwise obtained, as the case may be, and each of their successors in such  capacities.  “Decision Period” shall have the meaning assigned to such term in Section 2.17(d).  “Default” shall mean any event or condition which upon notice, lapse of time or both would  constitute an Event of Default.  “Defaulting Lender” shall mean, subject to Section 2.24(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 an  Administrative Agent and the Parent 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 an Administrative Agent, any Issuing Bank, and any Swing Line  Lender of any other Lender any other amount required to be paid by it hereunder (including in  respect of its participation in Letters of Credit or Swing Line Loans) within two (2) Business Days  of the date when due;   (b) has notified any Borrower, an Administrative Agent or any Issuing Bank or  Swing Line Lender in writing that it does not intend to comply with its funding obligations  hereunder, or has made a public statement to that effect (unless such writing or public statement  relates to such Lender’s obligation to fund 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 request by an Administrative  Agent or any Borrower, to confirm in writing to such Administrative Agent and such Borrower  that it will comply with its 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  such Administrative Agent and such Borrower); or  (d) has, or has a direct or indirect parent company that has, (i) become the  subject of a proceeding under any Insolvency Law, or (ii) had appointed for it a receiver, custodian,  conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged  with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance  Corporation or any other state or federal regulatory authority acting in such a capacity;   provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or  acquisition of any equity interest in that Lender or any direct or indirect parent company thereof  





 






  19  US-DOCS\125501258.12  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 an Administrative Agent that a Lender is a  Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and  binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject  to Section 2.24(b)) upon delivery of written notice of such determination to each Borrower, each  Issuing Bank, each Swing Line Lender and each Lender.     “Defined Benefit Plan” shall mean each of the pension plans identified as such in Schedule  3.16(b).  “Designated Person” shall mean a person or entity (a) listed in the annex to, or otherwise  subject to the provisions of, any Executive Order (as defined in the definition of “Sanctions Laws  and Regulations” below); (b) named as a “Specially Designated National and Blocked Person”  (“SDN”) on the most current list published by OFAC at its official website or any replacement  website or other replacement official publication of such list (“SDN List”); (c) in which an entity  on the SDN List has, to the knowledge of Parent Borrower or any of its subsidiaries, (i) 50% or  greater ownership interest or (ii) control of operations and day-to-day activities; or (d) listed in any  sanctions-related list of designated persons maintained by the United Nations Security Council,  the European Union or any European Union member state or that is otherwise the subject of  Sanctions Laws and Regulations.  “Discount Note” shall have the meaning assigned to such term in Section 2.22(h).  “Discount Proceeds” shall mean, in respect of any Bankers’ Acceptance required to be  purchased by a Lender hereunder, an amount (rounded to the nearest whole cent with one-half of  one cent being rounded up) determined as of the applicable date of Borrowing that is equal to the  Face Amount multiplied by the Price, where “Face Amount” is the face amount of such Bankers’  Acceptance and “Price” is equal to:    1    (1 + (Rate  x  Term)) x 365  where the “Rate” is the applicable Discount Rate expressed as a decimal on the day of purchase;  the “Term” is the term of such Bankers' Acceptance expressed as a number of days; and the Price  as so determined is rounded up or down to the fifth decimal place with .000005 being rounded up.  “Discount Rate” shall mean, with respect to the issuance of a Bankers’ Acceptance, the  rate of interest per annum, calculated on the basis of a year of 365 days, (rounded upwards, if  necessary, to the nearest whole multiple of 1/100th of one percent) which is equal to the discount  exacted by a purchaser taking initial delivery of such Bankers’ Acceptance, calculated as a rate  per annum and as if the issuer thereof received the discount proceeds in respect of such Bankers’  Acceptance on its date of issuance and had repaid the respective face amount of such Bankers’  Acceptance on the maturity date thereof.  “Documents” shall have the meaning assigned to such term in Section 1.03(b).  





 






  20  US-DOCS\125501258.12  “dollars”, “U.S. dollars”, “U.S.$” or “$” shall mean lawful money of the United States of  America.  “Domestic Subsidiaries” shall mean all Subsidiaries (other than the U.S. Borrower)  incorporated or organized under the laws of the United States of America, any State thereof or the  District of Columbia.  “EBITDA” shall mean, for any person for any period, Consolidated Net Income of such  person for such period plus (a) without duplication and to the extent deducted in determining such  Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such period,  (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation  and amortization for such period, (iv) any noncash charges or extraordinary losses for such period,  (v) [reserved], (vi) transaction costs associated with any Permitted Acquisitions in an aggregate  amount not to exceed U.S.$10,000,000 during the term of this Agreement and (vii) the amount of  cost savings, operating expense reductions and synergies directly attributable and of continuing  effect and projected by the Parent Borrower in good faith to be realized within 12 months after  consummation of a Permitted Acquisition (calculated on a pro forma basis as though such cost  savings, operating expense reductions and synergies had been realized on the first day of such  period for which EBITDA is being determined and as if such cost savings, operating expense  reductions and synergies were realized during the entirety of such period), net of the amount of  actual benefits realized during such period from such actions; provided that (A) such cost savings,  operating expense reductions and synergies (1) are reasonably identifiable and factually  supportable and (2) have been approved by the Administrative Agent in its reasonable discretion  and (B) the aggregate amount of such cost savings, operating expense reductions and synergies  included pursuant to this clause (a)(vii), shall not exceed 10% of EBITDA (after giving effect to  this clause (a)(vii)), and minus (b) without duplication (i) all cash payments made during such  period on account of reserves, restructuring charges and other noncash charges added to  Consolidated Net Income pursuant to clause (a)(iv) above in a previous period and (ii) to the extent  included in determining such Consolidated Net Income, any extraordinary gains and all noncash  items of income for such period, all determined for such person on a consolidated basis in  accordance with GAAP.  For the avoidance of doubt, without duplication of any amounts included  in Consolidated Net Income, EBITDA shall include all amounts recognized as income during such  period from the Canada Wage Subsidy program (but shall deduct, if applicable, any such amounts  that were required to be repaid during such period as a result of program non-compliance).  “EEA Financial Institution” shall mean (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” shall mean any of the member states of the European Union,  Iceland, Liechtenstein, and Norway.  





 






  21  US-DOCS\125501258.12  “EEA Resolution Authority” shall mean 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” shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved  Fund, and (d) any other person (other than a natural person).  “Environmental Laws” shall mean all former, current and future federal, state, provincial,  local and foreign laws (including common law), treaties, regulations, rules, ordinances, codes,  decrees, judgments, directives, orders (including consent orders), and agreements in each case,  relating to protection of the environment, natural resources, human health and safety or the  presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture,  processing, distribution, use, treatment, storage, transport, recycling or handling of, or the  arrangement for such activities with respect to, Hazardous Materials.  “Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims,  actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including  administrative oversight costs, natural resource damages and remediation costs), whether  contingent or otherwise, arising out of or relating to (a) compliance or noncompliance with 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 of  any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant  to which liability is assumed or imposed with respect to any of the foregoing.  “Equity Interests” shall mean shares of capital stock, partnership interests, membership  interests in a limited liability company, beneficial interests in a trust or other equity interests in  any person, or any obligations convertible into or exchangeable for, or giving any person a right,  option or warrant to acquire such equity interests or such convertible or exchangeable obligations.  “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same  may be amended from time to time.  “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,  together with a Borrower, is treated as a single employer under Section 414(b) or (c) of the Code,  or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single  employer under Section 414 of the Code.  “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA  or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30- day notice period is waived); (b) the failure of any Plan to satisfy the Pension Funding Rules; (c)  the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for  a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by a  Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to  the termination of any Plan or the withdrawal or partial withdrawal of a Borrower or any of its  ERISA Affiliates from any Plan or Multiemployer Plan; (e) the receipt by a Borrower or any of its  ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to  terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the receipt by a  





 






  22  US-DOCS\125501258.12  Borrower or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan  from a Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of  Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,  insolvent within the meaning of Title IV of ERISA; or (g) the occurrence of a “prohibited  transaction” with respect to which a Borrower or any of the Subsidiaries is a “disqualified person”  (within the meaning of Section 4975 of the Code) or with respect to which a Borrower or any such  Subsidiary could otherwise be liable.   “Erroneous Payment” has the meaning assigned to it in Section 8.13(a).  “Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 8.13(d).  “EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule  published by the Loan Market Association (or any successor person), as in effect from time to  time.  “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether such  Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by  reference to the Adjusted LIBO Rate.  “Event of Default” shall have the meaning assigned to such term in Article VII.  “Excess Cash” shall mean, as of any date of determination, the aggregate amount of  Unrestricted Cash on hand at the Parent Borrower and its Subsidiaries other than (a) any cash  allocated for, reserved or otherwise set aside to pay vendor payments, payroll, payroll taxes, other  taxes, and employee wage and benefit payment obligations of the Parent Borrower or any of its  Subsidiaries then due and owing and for which the Parent Borrower or such Subsidiary has issued  checks or has initiated wires or ACH transfers or will issue checks or initiate wires or ACH  transfers within five Business Days in order to make such payments, (b) to the extent the payment  of such amounts are not prohibited by this Agreement, other amounts in respect of which the Parent  Borrower or any of its Subsidiaries has issued checks or has initiated wires or ACH transfers to  Persons that are not Affiliates of a Credit Party but that have not yet been subtracted from the  balance in the relevant account of the Parent Borrower or any Subsidiary, (c) any cash of the Parent  Borrower and its Subsidiaries constituting pledges and/or deposits securing any binding and  enforceable purchase and sale agreement with any Persons who are not Affiliates of the Parent  Borrower and its Subsidiaries, in each case to the extent permitted by this Agreement and (d) cash  of a Borrower or any Subsidiary to be used by a Borrower or any Subsidiary within five Business  Days to pay the purchase price for any acquisition of any assets or property by such Loan Party  pursuant to an executed and binding agreement between such Loan Party and a third-party seller  that is not an Affiliate of such Borrower or Subsidiary, in each case to the extent permitted by this  Agreement.  “Exchange Rate” shall mean, on any day, (a) with respect to the Canadian Revolving Credit  Facilities only, for purposes of determining the U.S. Dollar Equivalent of Canadian dollars and the  Canadian Dollar Equivalent, the rate of exchange for Canadian interbank transactions at which  Canadian dollars may be exchanged into U.S. dollars or at which U.S. dollars may be exchanged  into Canadian dollars, respectively, established by the Bank of Canada and quoted at  





 






  23  US-DOCS\125501258.12  approximately the end of business (Standard Time) for the day in question or, if such determination  is required to made prior to such time, as quoted at approximately the end of business (Standard  Time) on the Business Day immediately preceding the date of determination, (b) with respect to  the Australian Revolving Credit Facility only, for purposes of determining the U.S. Dollar  Equivalent of Australian dollars and the Australian Dollar Equivalent, the Australian  Administrative Agent’s spot rate of exchange at which Australian dollars may be exchanged into  U.S. dollars or at which U.S. dollars may be exchanged into Australian dollars, respectively, as at  12:00 p.m. (London time) on such day, and (c) (i) for purposes of determining the U.S. Dollar  Equivalent, the rate at which Canadian dollars, Australian dollars or the applicable Alternative  Currency may be exchanged into U.S. dollars, (ii) for purposes of determining the Canadian Dollar  Equivalent, the rate at which U.S. dollars may be exchanged into Canadian dollars as set forth at  approximately 12:00 p.m. (Standard Time) on such day on the applicable Bloomberg Currency  Page and (iii) for purposes of determining the Australian Dollar Equivalent, the Australian  Administrative Agent’s spot rate of exchange at which U.S. dollars may be exchanged into  Australian dollars as at 12:00 p.m. (London time) on such day.  In the event that the rate at which  U.S. dollars may be exchanged into Canadian dollars does not appear on such Bloomberg Currency  Page, such Exchange Rate shall be determined by reference to such other publicly available service  for displaying exchange rates as may be agreed upon by the Administrative Agent and the Parent  Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic  average of the spot rates of exchange of the Administrative Agent in the market where its foreign  currency exchange operations in respect of Canadian dollars or U.S. dollars, as applicable, are then  being conducted, at or about 12:00 p.m. (Standard Time) on such day for the purchase of U.S.  dollars or Canadian dollars or Alternative Currencies, as the case may be, for delivery  two Business Days later; provided that if at the time of any such determination, for any reason, no  such spot rate is being quoted, the Administrative Agent may use any method it deems  commercially reasonable and appropriate to determine such rate, and such determination shall be  presumed correct absent manifest error.  “Excluded Collateral” shall mean (a) any lease, license, contract, property rights or  agreement to which any Guarantor is a party or any of its rights or interests thereunder if and for  so long as the grant of such security interest shall constitute or result in (i) the abandonment,  invalidation or unenforceability of any right, title or interest of any Guarantor therein or (ii) a  breach or termination pursuant to the terms of, or a default under, any such lease, license, contract  property rights or agreement (other than to the extent that any such term would be rendered  ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor  provision or provisions) of any relevant jurisdiction or any other applicable law (including any  Insolvency Law) or principles of equity), provided that the Collateral shall include and such  security interest shall attach immediately at such time as the condition causing such abandonment,  invalidation or unenforceability shall be remedied and to the extent severable, shall attach  immediately to any portion of such lease, license, contract, property rights or agreement that does  not result in any of the consequences specified in (i) or (ii) above; (b) those assets of a Guarantor  with respect to which, in the sole discretion of (i) the U.S. Collateral Agent with respect to U.S.  Collateral, (ii) the Canadian Collateral Agent with respect to Canadian Collateral or (iii) the  Australian Collateral Agent with respect to Australian Collateral, the burdens, costs or  consequences of obtaining a Lien on such assets are excessive in view of the benefits to be obtained  by the Secured Parties (including, for the avoidance of doubt, adverse tax consequences to the  Parent Borrower and its Subsidiaries); (c) with respect to any U.S. Collateral, any “intent to use”  





 






  24  US-DOCS\125501258.12  Trademark (as defined in the U.S. Security Agreement) applications prior to the filing and  acceptance of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the  extent, if any, that, and solely during the period, if any, in which, the grant of a security interest  therein would impair the validity or enforceability of such “intent-to-use” Trademark application  under applicable federal law, (d) any Equipment that is covered by a certificate of title under a  statute of any jurisdiction under the law of which an indication of a security interest on such  certificate is required as a condition of perfection of a security interest in such Equipment, (e)  “consumer goods” as that term is defined in the PPSA (Alberta) (f) any real property (including  all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned,  leased, operated or used by a Borrower of any of the Subsidiaries or (g) any asset over which the  granting of a security interest in such asset would be prohibited by contract (including Permitted  Liens, leases and licenses), applicable law or regulation (in each case, except to the extent such  prohibition is unenforceable after giving effect to applicable provisions of the UCC, other than  proceeds thereof, the assignment of which is expressly deemed effective under the UCC  notwithstanding such prohibitions) or to the extent that such security interest would require  obtaining the consent of any governmental or regulatory authority provided that the Collateral shall  include and such security interest shall attach immediately at such time as such prohibition no  longer exists or such consent is no longer required; provided, however, the foregoing clauses (a) -  (g) shall not exclude from the Collateral or the security interest granted under the Security  Documents  any right to receive Proceeds from a disposition, conveyance, transfer, exchange, lease  or similar transaction in respect of the foregoing or any other Proceeds, products, accessions,  substitutions or replacements of the foregoing unless they independently are covered by such  clauses (a) - (g).  Capitalized terms used but not defined in this paragraph shall have the meanings  assigned to such terms in the UCC.  “Excluded Subsidiary” shall mean each of (i) Ft. McMurray Lodge Services GP Ltd. and  (ii) any Subsidiary having no material assets other than Equity Interests of a Special Purpose  Business Entity.  “Excluded Swap Obligation” shall mean, with respect to any Loan Party, any Swap  Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the  grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee  thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order  of the Commodity Futures Trading Commission (or the application or official interpretation of any  thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract  participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time  the Guarantee of such Loan Party or the grant of such security interest becomes effective with  respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing  more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that  is attributable to swaps for which such Guarantee or security interest is or becomes illegal.   “Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a  Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed  on or measured by net income (however denominated), franchise Taxes and branch profits Taxes,  in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having  its principal office or, in the case of any Lender, its applicable lending office located in, the  jurisdiction imposing such Tax (or any political subdivision thereof), or if different, the jurisdiction  





 






  25  US-DOCS\125501258.12  (or jurisdictions) in which that Recipient is treated as resident for tax purposes, or (ii) that are  Other Connection Taxes, (b) in the case of a Lender, any withholding tax imposed by the  jurisdiction of the Applicable Borrower with respect to such Lender 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 a Borrower under Section  2.20(a)) or (ii) such Lender changes its lending office, except in each case to the extent that,  pursuant to Section 2.19, amounts with respect to such Taxes were payable either to such Lender’s  assignor immediately before such Lender became a party hereto or to such Lender immediately  before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply  with Section 2.19(g) or 2.19(h), (d) any U.S. federal withholding Taxes imposed under FATCA;  (e) in respect of any Australian Revolving Borrowing, Taxes that are a result of any representation  or warranty given by the Lead Arranger or a Lender under Section 9.22 being untrue or that are a  result of the Lead Arranger or a Lender breaching an undertaking contained in Section 9.22, (f) in  respect of any Australian Revolving Borrowing, any Australian Withholding Taxes which arise in  respect of interest paid or payable to a Lender that is an Offshore Associate of the Australian  Borrower, or as a result of there being less than two Lenders under this Agreement, (g) in respect  of any Australian Revolving Borrowing, Taxes which arise from the failure of (1) a Lender whose  lending office is located in Australia, or (2) a party that is making or proposes to make, a supply  under a Loan Document to a Borrower in the course or furtherance of an enterprise carried on in  Australia by that party, to provide such Borrower with its Australian tax file number or Australian  business number or exemption details such Borrower may reasonably require to establish that the  relevant Tax is not payable, and (h) in respect of any Australian Revolving Borrowing, Taxes  which arise in respect of any withholding or deduction on account of such Borrower receiving a  direction under section 255 of the Australian Tax Act or section 260-5 of Schedule 1 to the  Taxation Administration Act 1953 (Commonwealth of Australia) or any similar law.   “Facility” shall mean the U.S. Revolving Credit Facility, the Canadian Term Loan Facility,  the Canadian Revolving Credit Facility or the Australian Revolving Credit Facility, in each case  as the context may require.  “Facility Letter” shall have the meaning assigned to such term in the definition of Bilateral  Agreement.  “FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not  materially more onerous to comply with), any current or future regulations or official  interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code  and any intergovernmental agreements (or related legislation or official administrative rules or  practices) implementing the foregoing.  “FCPA” shall mean the United States Foreign Corrupt Practices Act of 1977.  “Federal Funds Effective Rate” shall mean, for any day, the weighted average (rounded  upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions  with members of the Federal Reserve System arranged by Federal funds brokers, as published on  the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is  





 






  26  US-DOCS\125501258.12  not so published for any day that is a Business Day, the rate (rounded upwards, if necessary, to the  next 1/100 of 1%) for such transactions as determined by the Administrative Agent.  “Fee Letter” shall mean the letter agreement dated as of the Closing Date between the  Parent Borrower and RBC.  “Fees” shall mean, collectively, the Commitment Fees, the L/C Participation Fees, the  Issuing Bank Fees and all fees set forth in the Fee Letter.  “Financial Covenants” shall mean the financial covenants set forth in Sections 6.10 and  6.11.  “Financial Officer” of any person shall mean the chief financial officer, principal  accounting officer, treasurer or controller of such person.  “Foreign Government Scheme or Arrangement” shall have the meaning assigned to such  term in Section 3.16(c).  “Foreign Lender” shall mean, with respect to a Borrower, any Lender that is organized  under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.   For purposes of this definition, the United States of America, each State thereof and the District  of Columbia shall be deemed to constitute a single jurisdiction, Canada and each province and  territory thereof shall be deemed to constitute a single jurisdiction and Australia and each state and  territory thereof shall be deemed to constitute a single jurisdiction.  “Foreign Plan” shall have the meaning assigned to such term in Section 3.16(c).  “Foreign Subsidiary” shall mean any Subsidiary that is not (a) a Domestic Subsidiary or  (b) a U.S. Borrower.   “Fronting Exposure” shall mean, at any time there is a Defaulting Lender, with respect to  an Issuing Bank, (a) such Defaulting Lender’s U.S. Revolving Pro Rata Percentage, Canadian  Revolving Pro Rata Percentage or Australian Revolving Pro Rata Percentage, as applicable  (determined, for the avoidance of doubt, without giving effect to any adjustment provided for in  Section 2.24(c) or 2.25(a)) of the outstanding U.S. L/C Exposure, Canadian L/C Exposure or  Australian L/C Exposure, as applicable, less (b) any portion of the amount calculated under clause  (a) above the risk participation with respect to which has been reallocated to other Applicable  Lenders or Cash Collateralized in accordance with the terms hereof.  “FSHCO” shall mean any Domestic Subsidiary that is a disregarded entity for U.S. federal  income tax purposes substantially all of the assets of which consist of, directly or indirectly, Equity  Interests in or Indebtedness of Foreign Subsidiaries that are U.S. Owned Subsidiaries.  “Fund” shall mean any person (other than a natural person) that is (or will be) engaged in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions of  credit in the ordinary course of its business.  





 






  27  US-DOCS\125501258.12   “GAAP” shall mean United States generally accepted accounting principles applied on a  consistent basis.  “Governmental Authority” shall mean the government of the United States or any other  nation, or of any political subdivision thereof, whether state, provincial 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).  “Granting Lender” shall have the meaning assigned to such term in Section 9.04(g).  “GST Act” shall mean A New Tax System (Goods and Services Tax) Act 1999 (Cth).  “GST Law” shall have the meaning it has in the GST Act.  “Guarantee” of or by any person shall mean (a) any obligation, contingent or otherwise,  of such person guaranteeing or having the economic effect of guaranteeing any Indebtedness of  any other 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 to purchase (or to advance or  supply funds for the purchase of) any security for the payment of such Indebtedness, (ii) to  purchase or lease property, securities or services for the purpose of assuring the owner of such  Indebtedness of the payment of such Indebtedness or, (iii) to maintain working capital, equity  capital or any other financial statement condition or liquidity of the primary obligor so as to enable  the primary obligor to pay such Indebtedness, 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; provided, however, that the  term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course  of business.  “Guarantee Agreements” shall mean, collectively, the U.S. Guarantee Agreement, the  Australian Guarantee Agreement and the Canadian Guarantee Agreement.  “Guarantors” shall mean, collectively, the Borrowers and the Subsidiary Guarantors.  “Hazardous Materials” shall mean (a) any petroleum products or byproducts and all other  hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated  biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical,  material, substance or waste that is prohibited, limited or regulated by or pursuant to any  Environmental Law.  “Hedging Agreement” shall mean any interest rate protection agreement, foreign currency  exchange agreement, commodity price protection agreement or other interest or currency exchange  rate or commodity price hedging arrangement.  





 






  28  US-DOCS\125501258.12  “Increased Amount Date” shall have the meaning assigned to such term in Section 2.25.  “Incremental Lender” shall have the meaning assigned to such term in Section 2.25.  “Incremental Revolving Commitment” shall have the meaning assigned to such term in  Section 2.25.  “Incremental Revolving Credit Increase” shall have the meaning assigned to such term in  Section 2.25.  “Indebtedness” of any person shall mean, without duplication, (a) all obligations of such  person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures,  notes or similar instruments, (c) all obligations of such person upon which interest charges are  customarily paid (excluding trade accounts payable and accrued obligations incurred in the  ordinary course of business), (d) all obligations of such person under conditional sale or other title  retention agreements relating to property or assets purchased by such person, (e) all obligations of  such person issued or assumed as the deferred purchase price of property or services (excluding  trade accounts payable and accrued obligations incurred in the ordinary course of business), (f) all  Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing  right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such  person, whether or not the obligations secured thereby have been assumed (provided that, for  purposes hereof, the amount thereof shall be limited to the lesser of (i) the amount of such  Indebtedness and (ii) the fair market value of such property), (g) all Guarantees by such person of  Indebtedness of others, (h) all Capital Lease Obligations of such person, (i) all obligations of such  person as an account party in respect of letters of credit and (j) all obligations of such person in  respect of bankers’ acceptances.  The Indebtedness of any person shall include the Indebtedness  of any partnership in which such person is a general partner, except to the extent that, by its terms,  such Indebtedness is nonrecourse to such person.  “Indemnified Liabilities” shall have the meaning assigned to such term in Section 9.05(b).  “Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of a Loan Party under any Loan  Document and (b) to the extent not otherwise described in (a), Other Taxes.  “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).  “Insolvency Law” shall mean, to the extent applicable, (a) Title 11 of the United States  Code, (b) the Bankruptcy and Insolvency Act (Canada), (c) the Companies’ Creditors  Arrangement Act (Canada), (d) Chapter 5 of the Australian Corporations Act; (e) any similar  federal, provincial, state, local or foreign bankruptcy or insolvency law applicable to the Parent  Borrower or any of its Subsidiaries and (f) any other law relating to insolvency, sequestration,  administration, liquidation, winding up or bankruptcy (including any law relating to the avoidance  of conveyances in fraud of creditors or of preferences and any law under which a liquidator or  trustee may set aside or avoid transactions), in each case as now constituted or hereafter amended  or enacted.  





 






  29  US-DOCS\125501258.12  “Interest Coverage Ratio” for any period shall mean the ratio of (a) Consolidated EBITDA  for such period to (b) Consolidated Interest Expense for the Parent Borrower and the Subsidiaries  for such period.  Solely for purposes of this definition, if, at any time the Interest Coverage Ratio  is being determined, the Parent Borrower or any Subsidiary shall have completed a Permitted  Acquisition or Asset Sale the consideration of which is greater than $25,000,000 since the  beginning of the relevant four fiscal quarter period, the Interest Coverage Ratio shall be determined  on a pro forma basis (using the criteria therefor described in Section 6.04(i)) as if such Permitted  Acquisition or Asset Sale and any related incurrence or repayment of Indebtedness, had occurred  at the beginning of such period.    “Interest Payment Date” shall mean (a) with respect to any ABR Loan, Canadian Prime  Rate Loan, U.S. Base Rate Loan or Swing Line Loan, the last Business Day of each March, June,  September and December, and the earlier of the Maturity Date and the date on which the applicable  Commitment shall expire or be terminated as provided herein, and (b) with respect to any  Eurocurrency Loan or BBSY Rate Loan, the last day of the Interest Period applicable to the  Borrowing of which such Loan is a part and the earlier of the Maturity Date and the date on which  the applicable Commitment shall expire or be terminated as provided herein, and in the case of a  Eurocurrency Borrowing or BBSY Rate Borrowing with an Interest Period of more than three  months’ duration, each day that would have been an Interest Payment Date had successive Interest  Periods of three months’ duration been applicable to such Borrowing.  “Interest Period” shall mean, with respect to any Eurocurrency Borrowing or BBSY Rate  Borrowing, the period commencing on the date of such Borrowing and ending on the numerically  corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar  month that is 1, 3 or 6 months thereafter (or a shorter period, in each case if requested by the  Applicable Borrower and consented to by all Applicable Lenders (including consent by verbal or  electronic communication (e-mail)), provided that any Lender that has not responded to such  request within three Business Days shall be deemed to have consented), as a Borrower may elect;  provided, however, that if any Interest Period would end on a day other than a Business Day, such  Interest Period shall be extended to the next succeeding Business Day unless such next succeeding  Business Day would fall in the next calendar month, in which case such Interest Period shall end  on the next preceding Business Day.  Interest shall accrue from and including the first day of an  Interest Period to but excluding the last day of such Interest Period.  For purposes hereof, the date  of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be  the effective date of the most recent conversion or continuation of such Borrowing.  “Investment” shall have the meaning assigned to such term in Section 6.04.  “IRS” shall mean the United States Internal Revenue Service.  “Issuing Bank” shall mean, as the context may require, (a) RBC, with respect to Letters of  Credit issued by it, (b) RBC Europe, with respect to Letters of Credit issued by it, (c) The Toronto  Dominion Bank, with respect to Letters of Credit issued by it, (d) with respect to each Rolled Letter  of Credit, the Lender that issued such Rolled Letter of Credit and (e) any other Lender that may  become an Issuing Bank pursuant to Section 2.21(j) or (l) with respect to Letters of Credit issued  by such Lender, or (f) collectively, all the foregoing.  Any Issuing Bank may, in its discretion,  arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which  





 






  30  US-DOCS\125501258.12  case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit  issued by such Affiliate.  “Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.05(c).  “ITA” shall mean the Income Tax Act (Canada), as amended, and any successor thereto,  and any regulations promulgated thereunder.  “Judgment Currency” shall have the meaning assigned to such term in Section 9.17.  “Judgment Currency Conversion Date” shall have the meaning assigned to such term in  Section 9.17.  “L/C Cash Collateral Account” shall have the meaning assigned to such term in Section  2.21(k).  “L/C Commitment” shall mean the commitment of each Issuing Bank to issue Letters of  Credit pursuant to Section 2.21.  “L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank  pursuant to a Letter of Credit.  “L/C Exposure” shall mean Australian L/C Exposure, Canadian L/C Exposure or U.S. L/C  Exposure, as applicable.  “L/C Issuance Limit” shall mean, with respect to each Applicable Issuing Bank, the amount  set forth on Schedule 2.21 opposite such Applicable Issuing Bank’s name, or in the case of any  Lender that becomes an Applicable Issuing Bank after the Closing Date the amount set forth in the  agreement executed by such Lender as contemplated by Section 2.21(l).  “L/C Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).  “Lead Arranger” shall, collectively, mean RBC Capital Markets, HSBC Bank Canada and  Bank of Montreal.  “Lender Joinder Agreement” shall mean a joinder agreement in form and substance  reasonably satisfactory to the Applicable Administrative Agent delivered in connection with  Section 2.25.  “Lenders” shall mean (a) the persons listed on Schedule 2.01 (other than any such person  that has ceased to be a party hereto pursuant to an Assignment and Acceptance or pursuant to  Section 2.24), (b) any person that has become a party hereto pursuant to an Assignment and  Acceptance or a Lender Joinder Agreement and (c) the Swing Line Lenders.  “Letter of Credit” shall mean any standby or commercial letter of credit issued (or, in the  case of a Rolled Letter of Credit, deemed issued) pursuant to Section 2.21.  A Letter of Credit shall  be a “U.S. Letter of Credit” if issued under the U.S. Revolving Credit Facility, a “Canadian Letter  of Credit” if issued under the Canadian Revolving Credit Facility and an “Australian Letter of  





 






  31  US-DOCS\125501258.12  Credit” issued under the Australian Revolving Credit Facility; provided that no commercial letter  of credit shall be issued under the Australian Revolving Credit Facility.  “Letter of Credit Application” shall mean an application and agreement for the issuance,  amendment or extension of a Letter of Credit in the form from time to time in use by an Issuing  Bank.  “Letter of Credit Documents” shall mean, with respect to any Letter of Credit, such Letter  of Credit, the related Letter of Credit Application and any agreements, documents, and instruments  entered into in connection with or relating to such Letter of Credit.  “LIBO Rate” shall mean, except as provided in Section 2.08, with respect to any  Eurocurrency Borrowing for any Interest Period, the interest rate per annum (rounded upward to  the nearest whole multiple of 1/100 of 1%) determined by the Applicable Administrative Agent at  approximately 11:00 a.m. (London time), on the date that is two Business Days prior to the  commencement of such Interest Period by reference to the rate set by ICE Benchmark  Administration for deposits in U.S. dollars (as set forth by any service selected by the Applicable  Administrative Agent that has been nominated by ICE Benchmark Administration as an authorized  information vendor for the purpose of displaying such rates) for a period of comparable term and  amount and having a maturity equal to such Interest Period; provided, however, that, (a) to the  extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this  definition, the “LIBO Rate” shall be the interest rate per annum determined by the Applicable  Administrative Agent to be the average of the rates per annum at which deposits in U.S. dollars  are offered for such relevant Interest Period to major banks in the London interbank market in  London, England by the Applicable Administrative Agent at approximately 11:00 a.m. (London  time) on the date that is two Business Days prior to the beginning of such Interest Period and (b)  if the LIBO Rate is less than zero at any time, such rate shall be deemed to be zero at such time  for purposes of this Agreement.  “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,  encumbrance, charge, hypothec or security interest in or on such asset and (b) the interest of a  vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement  (or any financing lease having substantially the same economic effect as any of the foregoing)  relating to such asset and (c) any security interest (as that term is defined in either the PPSA  (Alberta) or the PPSA (Australia)) but excluding any transfer of an “account” or “chattel paper”,  any “commercial consignment” or any “PPS lease” which, in any case, does not secure the  payment of money or performance of obligations.  The words in quotes have the same meaning in  this definition as the PPSA (Australia).  “Loan Documents” shall mean, collectively, this Agreement, any Notes, if any, issued  pursuant to Section 2.04(h), any Discount Notes, if any, issued pursuant to Section 2.22(h), the  Guarantee Agreements, the Security Documents, the Letter of Credit Documents, the Fee Letter,  a Customary Junior Lien Intercreditor Agreement, if any, and each other certificate, agreement,  instrument or other document executed and delivered, in each case, by or on behalf of any Loan  Party pursuant to the foregoing; provided, however, that for purposes of Section 9.08, “Loan  Documents” shall mean this Agreement, the Guarantee Agreements, the Security Documents and  a Customary Junior Lien Intercreditor Agreement, if any.  





 






  32  US-DOCS\125501258.12  “Loan Parties” shall mean the Borrowers and the Guarantors.  “Loans” shall mean, collectively, the U.S. Loans, the Canadian Revolving Credit Loans,  the Canadian Term Loans, the Australian Revolving Credit Loans and the Swing Line Loans.  “Margin Stock” shall have the meaning assigned to such term in Regulation U.  “Material Adverse Effect” shall mean (a) a materially adverse effect on the business, assets,  operations or condition (financial or otherwise) of the Parent Borrower and its subsidiaries, taken  as a whole, (b) material impairment of the ability of any Borrower or any other Loan Party to  perform any of its obligations under any Loan Document to which it is or will be a party or  (c) material impairment of the rights of or benefits available to the Lenders and the Agents under  any Loan Document.  “Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of  Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of the  Borrowers and the Subsidiaries in an aggregate principal amount exceeding U.S.$25,000,000.  For  purposes of determining Material Indebtedness, the “principal amount” of the obligations of a  Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall be the  maximum aggregate amount (giving effect to any netting agreements) that such Borrower or  Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.  “Material Subsidiary” shall mean any Subsidiary (other than an Excluded Subsidiary) of  the Parent Borrower that, as of the most recent date for which financial statements required to be  delivered pursuant to Sections 5.04(a) or (b) are available, has either (a) net tangible assets  (excluding assets that are eliminated in the calculation of consolidated net tangible assets of the  Parent Borrower and its subsidiaries) that constitute more than 5% of the consolidated net tangible  assets of the Parent Borrower and its subsidiaries or (b) EBITDA greater than 5% of the total  EBITDA of the Parent Borrower and its subsidiaries on consolidated basis; provided that if (i) the  combined net tangible assets of the Subsidiaries that are not considered to be Material Subsidiaries  (referred to herein as the “Immaterial Subsidiaries”) exceeds 15% of consolidated net tangible  assets of the Parent Borrower and its subsidiaries, or (ii) the combined EBITDA of the Immaterial  Subsidiaries exceeds 15% of the total EBITDA of the Parent Borrower and its subsidiaries on  consolidated basis, then one or more of such Immaterial Subsidiaries shall be deemed to be  Material Subsidiaries in descending order based on the respective percentage of consolidated net  tangible assets or percentage of the total EBITDA of the Parent Borrower and its subsidiaries on  consolidated basis until such excess shall have been eliminated.  Each Material Subsidiary listed  on Schedules 1.01(b), 1.01(c) and 1.01(d) is a Guarantor as of the Closing Date.  “Maturity Date” shall mean September 8, 2025.   “Maximum Rate” shall have the meaning assigned to such term in Section 9.09.  “Moody’s” shall mean Moody’s Investors Service, Inc. and any successor thereto which is  a nationally recognized statistical rating organization.  “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3)  of ERISA.  





 






  33  US-DOCS\125501258.12   “Net Cash Proceeds” shall mean, as applicable, (a) with respect to any Asset Sale, the cash  (which term, for purposes of this definition, shall include any Permitted Investments, deferred  payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when  received) proceeds received by the Parent Borrower or any of its Subsidiaries therefrom, less the  sum of (i) all income taxes and other taxes payable (or reasonably estimated to be payable) to a  Governmental Authority as a result of such transaction, (ii) all reasonable and customary out-of- pocket fees (including, without limitation, legal, accounting and advisory fees, and sales  commissions) and expenses incurred in connection with such transaction or event, (iii) the  principal amount of, premium or penalty, if any, and interest on any Indebtedness secured by a  Lien on the asset (or a portion thereof) disposed of, which Indebtedness is required to be repaid in  connection with such transaction or event (other than pursuant to Section 2.12), (iv) any amounts  paid in respect of Hedging Agreement terminated as a result of the payment of Indebtedness under  clause (iii), (v) all distributions and other payments required to be made to minority interest holders  in Subsidiaries or joint ventures or to holders of royalty or similar interests as a result of such Asset  Sale and (vi) the amount of any reserves established by the Parent Borrower or any of its  subsidiaries in accordance with GAAP or other applicable accounting principles, to fund purchase  price adjustments, indemnification and similar contingent liabilities reasonably estimated to be  payable, in each case during the year that such event occurred or the next succeeding year and that  are directly attributable to the occurrence of such event (as determined reasonably and in good  faith by a Financial Officer); provided that to the extent any such Net Cash Proceeds received by  any Foreign Subsidiary may not be distributed as a cash dividend or a similar cash distribution to  a Loan Party without the Parent Borrower and its Subsidiaries incurring adverse tax consequences,  as reasonably determined by the Parent Borrower, such proceeds shall, so long as no Event of  Default shall have occurred and be continuing at the time of the receipt thereof, not constitute “Net  Cash Proceeds” and (b) with respect to any issuance or incurrence of Indebtedness, the cash  proceeds thereof, net of all customary fees, commissions, costs and other expenses incurred in  connection therewith and, in respect of any Indebtedness that is incurred to refinance or replace  any existing Indebtedness, the amount thereof that is used to effect such refinancing or  replacement.  “Non-Consenting Lender” shall mean any Lender that does not approve any proposed  consent, waiver, amendment, modification or termination with respect to any provision hereof or  any other Loan Document that (i) requires the approval of all Lenders or all affected Lenders in  accordance with the terms of Section 9.08 and (ii) has been approved by the Applicable Required  Lenders.  “Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting  Lender at such time.     “Note” shall have the meaning assigned to such term in Section 2.04(h).  “Obligations” shall mean (a) the due and punctual payment by each of the Loan Parties of  (i) the principal of and premium, if any, and interest (including interest accruing during the  pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of  whether allowed or allowable in such proceeding) on the Loans when and as due, whether at  maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each  payment required to be made by the Loan Parties under this Agreement or any other Loan  





 






  34  US-DOCS\125501258.12  Document in respect of any Letter of Credit, when and as due, including payments in respect of  reimbursement of disbursements, interest thereon and obligations to provide cash collateral and  (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether  primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations  incurred during the pendency of any bankruptcy, insolvency, receivership or other similar  proceeding, regardless of whether allowed or allowable in such proceeding), of the Loan Parties  to the Secured Parties under this Agreement and the other Loan Documents, (b) the due and  punctual performance of all covenants, agreements, obligations and liabilities of the Loan Parties  under or pursuant to this Agreement and the other Loan Documents, (c) the due and punctual  payment and performance of all obligations of the Loan Parties, monetary or otherwise, under each  Hedging Agreement entered into with a counterparty that was a Lender (or an affiliate of a Lender)  at the time such Hedging Agreement was entered into, (d) the due and punctual performance of all  Banking Services Obligations provided to the Borrowers or any Subsidiary by any Lender or any  Affiliate of a Lender and (e) the due and punctual payment and performance of all Bilateral  Obligations. Notwithstanding anything to the contrary contained herein, “Obligations” shall not  include the Excluded Swap Obligations.  “OFAC” shall mean the Office of Foreign Assets Control of the U.S. Department of the  Treasury.  “Offshore Associate” shall mean an Associate:  (a) which is a non-resident of Australia and does not become a Lender or  receive a payment in carrying on a business in Australia at or through a permanent establishment  of the Associate in Australia; or  (b) which is a resident of Australia and which becomes a Lender or receives a  payment in carrying on a business in a country outside Australia at or through a permanent  establishment of the Associate in that country,  and, in either case, which does not become a Lender and receive payment in the capacity  of a clearing house, custodian, funds manager or responsible entity of a registered scheme (with  each such term having the meaning given for the purposes of section 128F of the Australian Tax  Act).  “Original Indebtedness” shall have the meaning set forth in the definition of Permitted  Refinancing Indebtedness.  “Other Connection Taxes” shall mean, 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” shall mean any and all present or future stamp, court or documentary,  intangible, recording, filing or similar Taxes that arise from any payment made under any Loan  Document or from the execution, delivery or enforcement or registration of, from the receipt or  





 






  35  US-DOCS\125501258.12  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 2.20).  “Outstanding BAs Collateral” shall have the meaning assigned to such term in  Section 2.22(k).  “Parent Borrower” shall have the meaning assigned to such term in the preamble hereto.   “Participant” shall have the meaning assigned to such term in Section 9.04(d).  “Participant Register” shall have the meaning assigned to such term in Section 9.04(d).  “Patriot Act” shall have the meaning assigned to such term in Section 9.21.   “Payment Notice” has the meaning assigned to it in Section 8.13(a).  “Payment Recipient” has the meaning assigned to it in Section 8.13(a).  “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in  ERISA.   “Pension Funding Rules” shall mean the rules of the Code and ERISA regarding minimum  required contributions (including any installment payment thereof) to Plans and set forth in Section  412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.  “Permitted Acquisition” shall mean any acquisition meeting all the criteria of either Section  6.04(i) or Section 6.04(m).  “Permitted Investments” shall mean:  (a) direct obligations of, or obligations the principal of and interest on which  are unconditionally guaranteed by, United States of America, Canada, the United Kingdom,  Australia or any other country that is a signatory to the Convention on the Organization for  Economic Co-operation and Development (or by any agency, state, province or territory thereof  to the extent such obligations are backed by the full faith and credit of such country or applicable  state, province or territory), in each case maturing within one year from the date of acquisition  thereof;  (b) investments in commercial paper maturing within 270 days from the date  of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable  from S&P, Moody’s, Canadian Bond Rating Service or Dominion Bond Rating Service Limited;  (c) investments in certificates of deposit, banker’s acceptances and time  deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or  placed with, and money market and other deposit accounts issued or offered by, any domestic  office of any Lender or any commercial bank organized under the laws of the United States of  America, Canada, the United Kingdom or Australia or any state, province of territory thereof, that  





 






  36  US-DOCS\125501258.12  has a combined capital and surplus and undivided profits of not less than U.S.$500,000,000 (or, in  the case of any bank that is a Lender, U.S.$200,000,000);  (d) fully collateralized repurchase agreements with a term of not more than 30  days for securities described in clause (a) above and entered into with a financial institution  satisfying the criteria of clause (c) above; and  (e) other short-term investments utilized by Foreign Subsidiaries in accordance  with normal investment practices for cash management in investments of a type analogous to the  foregoing.  “Permitted Liens” shall mean Liens permitted by Section 6.02.  “Permitted Refinancing Indebtedness” shall mean with respect to any Indebtedness of any  Person (the “Original Indebtedness”), any modification, refinancing, refunding, replacement,  renewal or extension of such Original Indebtedness, in whole or in part; provided, that (i) no Person  that is not an obligor or guarantor with respect to the Original Indebtedness shall be an obligor or  guarantor with respect to such Permitted Refinancing Indebtedness, (ii) the final maturity and  Weighted Average Life to Maturity of such Permitted Refinancing Indebtedness shall be no shorter  than the Original Indebtedness as a result of such modification, refinancing, refunding,  replacement, renewal or extension, (iii) the mandatory prepayment and redemption terms,  covenants and events of default of such Permitted Refinancing Indebtedness are either (x) not  materially more favorable (taken as a whole, as conclusively determined by the Borrower in good  faith) to the lenders providing such Permitted Refinancing Indebtedness than those terms (taken  as a whole) applicable to the Original Indebtedness (except to the extent such terms apply solely  to any period after the Maturity Date or applied for the benefit of the Loans then outstanding) or  (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively  determined by the Borrower in good faith, (iv) (x) in the case of any Original Indebtedness  consisting of a revolving credit facility, the principal amount does not exceed the committed  amount in respect of the Original Indebtedness or (y) in each other case, the principal amount (or  accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if  applicable) of the Original Indebtedness, except in each case by an amount (such amount, the  “Additional Permitted Amount”) equal to unpaid accrued interest, fees, and premium (including  make-whole premiums, prepayment premiums and amounts required to be paid in connection with  defeasance and satisfaction and discharge) thereon at such time plus reasonable fees and expenses  incurred in connection with such modification, refinancing, refunding, replacement, renewal or  extension (including upfront fees and original issue discount), (v) for the avoidance of doubt, the  Original Indebtedness is paid down (or, with respect to revolving credit facilities, commitments in  respect thereof are reduced (together with, if applicable, payments of principal)) on a dollar-for- dollar basis by such Permitted Refinancing Indebtedness (other than by the Additional Permitted  Amount), (vi) if the Original Indebtedness shall have been subordinated to the Obligations, such  Permitted Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less  favorable in any material respect (taken as a whole) to the Lenders, (vii) such Permitted  Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that  secured such Original Indebtedness (or would have been required to secure such Original  Indebtedness pursuant to the terms thereof) or, in the event Liens securing such Original  Indebtedness shall have been contractually subordinated to any Lien securing the Obligations, by  





 






  37  US-DOCS\125501258.12  any Lien that shall not have been contractually subordinated to at least the same extent, (viii) at  the time thereof, no Default or Event of Default shall have occurred and be continuing and (ix) if  the Original Indebtedness is subject to a Customary Junior Lien Intercreditor Agreement, the  trustee, administrative agent, collateral agent, security agent or similar agent under the indenture  or agreement pursuant to which such Permitted Refinancing Indebtedness is issued, incurred or  otherwise obtained, as the case may be, and each of their successors in such capacities, shall  become a party to such Customary Junior Lien Intercreditor Agreement or other Customary Junior  Lien Intercreditor Agreement.  “person” shall mean any natural person, corporation, business trust, joint venture,  association, company, limited liability company, partnership, Governmental Authority or other  entity.  “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)  subject to the provisions of Title IV of ERISA or Section 412 of the Code, and in respect of which  a U.S. Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under  Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.  “Plan Asset Regulations” shall mean 29 CFR § 2510.3-101 et seq., as modified by Section  3(42) of ERISA, as amended from time to time.  “Platform” shall have the meaning assigned to such term in Section 5.04.  “Pledge Agreements” shall mean, collectively, the U.S. Pledge Agreement and the  Canadian Pledge Agreement.  “Potential Defaulting Lender” shall mean, at any time, a Lender that has, or whose parent  company has, a non-investment grade rating from Moody’s or S&P or another nationally  recognized rating agency.  Any determination that a Lender is a Potential Defaulting Lender will  be made by an Administrative Agent in its sole discretion acting in good faith.  “PPS Law” shall mean (a) the PPSA (Australia) and any regulation made at any time under  the PPSA (Australia), including the PPS Regulations (each as amended from time to time) and (b)  any amendment made at any time to any other legislation as a consequence of a law or regulation  referred to in paragraph (a).  “PPS Register” shall mean the Personal Property Securities Register established pursuant  to the PPSA (Australia).  “PPS Regulations” shall mean the Personal Property Securities Regulations 2010 (Cth).  “PPSA (Alberta)” shall mean the Personal Property Security Act, RSA 2000, c. P-7  (Alberta).  “PPSA (Australia)” shall mean the Australian Personal Property Securities Act 2009 (Cth).  “Prime Rate” shall mean, at any time, the rate of interest most recently announced by the  Administrative Agent as its U.S. prime rate, with the understanding that the Prime Rate is one of  





 






  38  US-DOCS\125501258.12  the Administrative Agent’s base rates and serves as the basis upon which effective rates of interest  are calculated for those loans making reference thereto, and is evidenced by the recording thereof  after its announcement in such internal publication or publications as the Administrative Agent  may designate.  Each change in the Prime Rate shall be effective on the date such change is publicly  announced as being effective.  “Proceeding” shall have the meaning assigned to such term in Section 9.05(b).  “PTE” shall mean 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” shall have the meaning assigned to such term in Section 5.04.  “QFC” shall have the meaning assigned to the term “qualified financial contract” in, and  shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” shall have the meaning provided in Section 9.25.  “Qualified ECP Guarantor” shall mean, in respect of any Swap Obligation, each Loan  Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the  relevant security interest becomes effective with respect to such Swap Obligation or such other  person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any  regulations promulgated thereunder and can cause another person to qualify as an “eligible contract  participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the  Commodity Exchange Act.   “Qualified Offering” shall mean Indebtedness issued by the Parent Borrower and  guarantees thereof by any other Loan Party; provided that, as of the date of issuance, (i) such  Indebtedness (a) is unsecured or (b) is secured by a Lien on the Collateral that is junior in priority  to the Lien securing the Obligations hereunder and is subject to a Customary Junior Lien  Intercreditor Agreement and is not secured by any property or assets other than the Collateral, (ii)  the Parent Borrower would be in compliance with the Financial Covenants as of the most recently  completed period of four consecutive fiscal quarters ending prior to such transaction for which the  financial statements required by Section 5.04(a) or 5.04(b) have been delivered or for which  comparable financial statements have been filed with the SEC, after giving pro forma effect (using  the criteria therefor described in Section 6.04(i)) to any incurrence or contemporaneous discharge  of Indebtedness and all related transactions, as if such incurrence, discharge or other transaction  had occurred as of the first day of such period, (iii) such Indebtedness matures no earlier than 180  days after the Maturity Date at the time such Indebtedness is incurred, (iv) such Indebtedness does  not require any scheduled amortization, mandatory prepayments, redemptions, sinking fund  payments or purchase offers prior to the final maturity date thereof (other than pursuant to  customary asset sale and change of control offers) provided that so long as (A) no Canadian Term  Loans are outstanding and (B) after giving effect to the incurrence of such Indebtedness (and any  Borrowings on the date such Indebtedness is incurred), there must be at least U.S.$40,000,000 of  the Revolving Commitments unused and available, of which at least U.S.$30,000,000 must be  comprised of Canadian Revolving Commitments and U.S. Revolving Commitments unused and  available, in the aggregate, such Qualified Offering may require (1) scheduled amortization not to  





 






  39  US-DOCS\125501258.12  exceed 1% of the principal amount of such Indebtedness annually and (2) excess cash flow  mandatory prepayments, (v) such Indebtedness is not guaranteed by any person other than the  Guarantors, (vi) the terms and conditions (other than pricing, rate floors, discounts, fees, premiums  and optional prepayment or redemption provisions) of such Indebtedness are in the good faith  determination of the Parent Borrower, not materially less favorable (when taken as a whole) to the  Parent Borrower than the terms and conditions of the Loan Documents (when taken as a whole),  and (vii)  no Default or Event of Default shall have occurred and be continuing at the time of  incurrence or would result therefrom.  “RBC” shall have the meaning assigned to such term in the preamble hereto.  “RBC Europe” shall have the meaning assigned to such term in the preamble hereto.  “Recipient” shall mean (a) any Agent, (b) any Lender (c) any Issuing Bank, and (d) any  Swing Line Lender, as applicable.    “Recipient Party” shall have the meaning assigned to such term in Section 2.19(j).  “Reference Banks” shall mean Australia and New Zealand Banking Group Limited (ACN  005 357 522), Commonwealth Bank of Australia (ACN 123 123 124), Westpac Banking  Corporation (ACN 007 457 141) and National Australia Bank Limited (ACN 004 044 937), or  such other banks as may be selected by the Australian Administrative Agent in consultation with  the Australian Borrower.  “Register” shall have the meaning assigned to such term in Section 9.04(c).  “Regulation T” shall mean Regulation T of the Board as from time to time in effect and all  official rulings and interpretations thereunder or thereof.  “Regulation U” shall mean Regulation U of the Board as from time to time in effect and  all official rulings and interpretations thereunder or thereof.  “Regulation X” shall mean Regulation X of the Board as from time to time in effect and all  official rulings and interpretations thereunder or thereof.  “Related Parties” shall mean, with respect to any specified person, such person’s Affiliates  and the respective partners, directors, officers, employees, agents and advisors of such person and  such person’s Affiliates.  “Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring,  deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or  within or upon any building, structure, facility or fixture.  “Required Australian Lenders” shall mean, at any time, Australian Lenders having  Australian Revolving Credit Loans, a share of the Australian L/C Exposure and unused Australian  Revolving Commitments representing at least a majority of the sum of all Australian Revolving  Credit Loans outstanding, the Australian L/C Exposure and unused Australian Revolving  Commitments at such time; provided that the Australian Revolving Credit Loans outstanding,  





 






  40  US-DOCS\125501258.12  share of Australian L/C Exposure and unused Australian Revolving Commitments of any  Defaulting Lender shall be disregarded in determining Required Australian Lenders at any time.   For purposes of determining the Required Australian Lenders at any time, the amount of any  Australian Revolving Credit Loans denominated in Australian dollars and the Australian L/C  Exposure shall be the U.S. Dollar Equivalent thereof at such time, as determined by the  Administrative Agent using the then-applicable Exchange Rate.  “Required Canadian Lenders” shall mean, at any time, Canadian Lenders having Canadian  Loans, a share of the Canadian L/C Exposure and unused Canadian Revolving Commitments  representing at least a majority of the sum of all Canadian Loans outstanding, the Canadian L/C  Exposure and unused Canadian Revolving Commitments at such time; provided that the Canadian  Loans outstanding, the share of Canadian L/C Exposure and unused Canadian Revolving  Commitments of any Defaulting Lender shall be disregarded in determining Required Canadian  Lenders at any time.  “Required Canadian Term Lenders” shall mean, at any time, Canadian Term Lenders  having Canadian Term Loans representing at least a majority of the sum of all Canadian Term  Loans outstanding at such time; provided that the Canadian Term Loans outstanding of any  Defaulting Lender shall be disregarded in determining Required Canadian Term Lenders at any  time.   “Required Canadian Revolving Lenders” shall mean, at any time, Canadian Revolving  Lenders having Canadian Revolving Credit Loans, a share of the Canadian L/C Exposure and  unused Canadian Revolving Commitments representing at least a majority of the sum of all  Canadian Revolving Credit Loans outstanding, the Canadian L/C Exposure and unused Canadian  Revolving Commitments at such time; provided that the Canadian Revolving Credit Loans  outstanding, share of Canadian L/C Exposure and unused Canadian Revolving Commitments of  any Defaulting Lender shall be disregarded in determining Required Canadian Revolving Lenders  at any time.  For purposes of determining the Required Canadian Revolving Lenders at any time,  the amount of any Canadian Revolving Credit Loans denominated in Canadian dollars and the  Canadian L/C Exposure shall be the U.S. Dollar Equivalent thereof at such time, as determined by  the Administrative Agent using the then-applicable Exchange Rate.   “Required Lenders” shall mean, at any time, Lenders having Loans, a share of the  Aggregate L/C Exposure and unused Revolving Commitments representing at least a majority of  the sum of all Loans outstanding, the Aggregate L/C Exposure and unused Revolving  Commitments at such time; provided that the Loans outstanding, share of Aggregate L/C Exposure  and unused Revolving Commitments of any Defaulting Lender shall be disregarded in determining  Required Lenders at any time.  For purposes of determining the Required Lenders at any time, (i)  the amount of any Canadian Revolving Credit Loans denominated in Canadian dollars and  Canadian L/C Exposure shall be the U.S. Dollar Equivalent thereof at such time, as determined by  the Administrative Agent using the then-applicable Exchange Rate and (ii) the amount of any  Australian Revolving Credit Loans denominated in Australian dollars and Australian L/C  Exposure shall be the U.S. Dollar Equivalent thereof at such time, as determined by the  Administrative Agent using the then-applicable Exchange Rate.  





 






  41  US-DOCS\125501258.12  “Required Revolving Lenders” shall mean the Required Australian Lenders, the Required  Canadian Revolving Lenders or the Required U.S. Lenders, as applicable.   “Required U.S. Lenders” shall mean, at any time, U.S. Revolving Lenders having U.S.  Revolving Credit Loans, a share of the U.S. L/C Exposure and unused U.S. Revolving  Commitments representing at least a majority of the sum of all U.S. Revolving Credit Loans  outstanding, the U.S. L/C Exposure and unused U.S. Revolving Commitments at such time;  provided that the U.S. Revolving Credit Loans outstanding, share of U.S. L/C Exposure and  unused U.S. Revolving Commitments of any Defaulting Lender shall be disregarded in  determining Required U.S. Lenders at any time.  “Resolution Authority” shall mean, with respect to an EEA Financial Institution, an EEA  Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.   “Responsible Officer” of any person shall mean any executive officer or Financial Officer  of such person and any other officer or similar official thereof responsible for the administration  of the obligations of such person in respect of this Agreement or any other Loan Document.  “Restricted Indebtedness” shall mean Subordinated Indebtedness of the Parent Borrower  or any Subsidiary, the payment, prepayment, repurchase or defeasance of which is restricted under  Section 6.09(b).  “Restricted Payment” shall mean any dividend or other distribution (whether in cash,  securities or other property) with respect to any Equity Interests in the Parent Borrower or any  Subsidiary, or any payment (whether in cash, securities or other property), including any sinking  fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,  cancellation or termination of any Equity Interests in the Parent Borrower or any Subsidiary or any  option, warrant or other right to acquire any such Equity Interests in the Parent Borrower or any  Subsidiary.  “Revolving Commitments” shall mean the Canadian Revolving Commitments, the U.S.  Revolving Commitments and the Australian Revolving Commitments.  “Revolving Credit Loans” shall mean U.S. Revolving Credit Loans, Canadian Revolving  Credit Loans or Australian Revolving Credit Loans, as the context may require.   “Revolving Lenders” shall mean U.S. Revolving Lenders, Canadian Revolving Lenders or  Australian Lenders, as the context may require.   “Rolled Letter of Credit” shall mean each Letter of Credit previously issued for the account  of a Borrower that (a) is outstanding on the Closing Date and (b) is listed on Schedule 1.01(a).  “Sanctions Laws and Regulations” shall mean (a) any economic, trade or financial  sanctions, prohibitions or requirements imposed, administered or enforced by any executive order  of the President of the United States (an “Executive Order”) or by any economic sanctions program  administered by OFAC or the U.S. Department of State; and (b) any sanctions measures or  programs administered, enforced or imposed by the United Nations Security Council, European  Union, the United Kingdom, Canada, Singapore or Australia.  





 






  42  US-DOCS\125501258.12  “SEC” shall mean the Securities and Exchange Commission, and any successor entity.  “Secured Parties” shall mean (a) the Lenders, (b) the Administrative Agents, (c) the  Collateral Agents, (d) the Issuing Banks, (e) each counterparty to a Hedging Agreement entered  into with a Loan Party if such counterparty was a Lender (or an Affiliate of a Lender) at the time  the Hedging Agreement was entered into, (f) any Lender (or any Affiliate of a Lender) providing  Banking Services to any Loan Party, (g) the Bilateral Lender, (h) the beneficiaries of each  indemnification obligation undertaken by any Grantor under any Loan Document and (i) the  successors and assigns of each of the foregoing.  “Security Agreements” shall mean, collectively, the U.S. Security Agreement, the  Canadian Security Agreement and the Australian Security Deed.  “Security Documents” shall mean the Security Agreements, the Pledge Agreements, and  each of the security agreements, and other instruments and documents executed and delivered  pursuant to any of the foregoing or pursuant to Section 5.09.  “Senior Secured Net Debt” at any time shall mean (a) the Indebtedness of the Parent  Borrower and its Subsidiaries (excluding Indebtedness of the type described in clause (i) of the  definition of such term, except to the extent of any unreimbursed drawings thereunder) that is  secured by a first priority Lien on any property or assets of the Parent Borrower or any Subsidiary,  minus (b) the aggregate amount of Unrestricted Cash of the Parent Borrower and its Subsidiaries  at such time, provided, that if there are (1) any Loans then outstanding or (2) any drawn and  unreimbursed Letters of Credit with a face amount of not less than U.S.$1,000,000 individually,  and U.S.$3,000,000 in the aggregate for all such Letters of Credit, that have not been reimbursed  in accordance with Section 2.21(e), the amount of this clause (b) shall not exceed $30,000,000.  “Senior Secured Net Leverage Ratio” shall mean, on any date, the ratio of Senior Secured  Net Debt on such date to Consolidated EBITDA for the period of four consecutive fiscal quarters  most recently ended on or prior to such date for which financial statements have been delivered  pursuant to Section 5.04(a) or (b) or for which comparable financial statements have been filed  with the SEC.  Solely for purposes of this definition, if, at any time the Senior Secured Net  Leverage Ratio is being determined, the Parent Borrower or any Subsidiary shall have completed  a Permitted Acquisition or Asset Sale the consideration of which is greater than U.S.$25,000,000  since the beginning of the relevant four fiscal quarter period, the Senior Secured Net Leverage  Ratio shall be determined on a pro forma basis (using the criteria therefor described in  Section 6.04(i)) as if such Permitted Acquisition or Asset Sale, and any related incurrence or  repayment of Indebtedness, had occurred at the beginning of such period.    “Solvent” shall mean, with respect to any person, (a) the fair value of the assets of such  person exceeds its debts and liabilities, contingent or otherwise; (b) the present fair saleable value  of the property of such person are greater than the amount that will be required to pay the probable  liability associated with its debts and other liabilities, contingent or otherwise, as such debts and  other liabilities become absolute and matured; (c) such person is able to pay its  debts and  liabilities, contingent or otherwise, as such debts and liabilities become absolute and matured; and  (d) such person does not have unreasonably small capital with which to conduct its business in  





 






  43  US-DOCS\125501258.12  which it is engaged as such business is now conducted and is proposed to be conducted following  the Closing Date.  “S&P” shall mean Standard & Poor’s Ratings Service, a division of The McGraw-Hill  Companies, Inc., or any successor thereof which is a nationally recognized statistical rating  organization.  “SPC” shall have the meaning assigned to such term in Section 9.04(g).  “Special Purpose Business Entity” shall mean each entity listed on Schedule 3.08 as being  a Special Purpose Business Entity and any other entity formed by the Parent Borrower or any of  its Subsidiaries, or in which the Parent Borrower or any of its Subsidiaries acquires an Equity  Interest, in each case so long as (i) such entity is, or proposes to engage in, a joint venture with  persons that are, or are owned or controlled by, aboriginal peoples in Alaska, Australia or Canada,  (ii) any loans or advances to, or investments in such Special Purpose Business Entity is permitted  by Section 6.04, and (iii) the Parent Borrower delivers a certificate of a Responsible Officer to the  Administrative Agents designating such Special Purpose Business Entity as such and certifying  compliance with the foregoing requirements of this definition.  “Specified Dispositions” shall mean those sales or other dispositions identified in writing  to the Administrative Agent by the Parent Borrower on or prior to the Closing Date.  “Standard Time” shall mean eastern standard time or eastern daylight savings time, as  applicable on the relevant date.  “Statutory Reserves” shall mean a fraction (expressed as a decimal carried out to five  decimal places), the numerator of which is the number one and the denominator of which is the  number one minus the aggregate of the maximum reserve percentages (including any marginal,  special, emergency or supplemental reserves) expressed as a decimal carried out to five decimal  places established by the Board for Eurocurrency Liabilities (as defined in Regulation D of the  Board).  Such reserve percentages shall include those imposed pursuant to such Regulation D.   Eurocurrency Loans shall be deemed to constitute Eurocurrency Liabilities and to be subject to  such reserve requirements without benefit of or credit for proration, exemptions or offsets that may  be available from time to time to any Lender under such Regulation D.  Statutory Reserves shall  be adjusted automatically on and as of the effective date of any change in any reserve percentage.  “Subordinated Indebtedness” shall mean (a) Indebtedness incurred under Section 6.01(e)  and any Permitted Refinancing Indebtedness in respect thereof and (b) Indebtedness of a Loan  Party that is subordinated to the prior payment in full of the Obligations on terms reasonably  satisfactory to the Administrative Agent.  “subsidiary” shall mean, with respect to any person (herein referred to as the “parent”),  any corporation, partnership, association or other business entity of which securities or other  ownership interests representing more than 50% of the equity or more than 50% of the ordinary  voting power are, at the time any determination is being made, owned, controlled or held by the  parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of  the parent.  





 






  44  US-DOCS\125501258.12  “Subsidiary” shall mean any subsidiary of a Borrower, other than a Special Purpose  Business Entity.  “Subsidiary Guarantors” shall mean, collectively, the U.S. Subsidiary Guarantors, the  Canadian Subsidiary Guarantors, and the Australian Subsidiary Guarantors.  “Supplier” shall have the meaning assigned to such term in Section 2.19(j).  “Supported QFC” shall have the meaning provided in Section 9.25.  “Swap Obligation” shall mean, with respect to any Loan Party, 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.   “Swing Line Borrowing” shall mean a U.S. Swing Line Borrowing or a Canadian Swing  Line Borrowing, as the context may require.    “Swing Line Lender” shall mean the U.S. Swing Line Lender or the Canadian Swing Line  Lender, as the context may require.    “Swing Line Loan” shall mean a U.S. Swing Line Loan or a Canadian Swing Line Loan,  as the context may require.    “Swing Line Payment Date” shall mean (a) if an AutoBorrow Agreement is in effect, the  earliest to occur of (i) the date required by such AutoBorrow Agreement, (ii) demand is made by  the Applicable Swing Line Lender and (iii) the Maturity Date, or (b) if an AutoBorrow Agreement  is not in effect, the earlier to occur of (i) five (5) Business Days after the date of the applicable  Swing Line Borrowing if no Default or Event of Default exists, and otherwise upon demand by  the Applicable Swing Line Lender and (ii) the Maturity Date.  “Swing Line Sublimit” shall mean the U.S. Swing Line Sublimit or the Canadian Swing  Line Sublimit, as the context may require.    “Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or  combination of agreements pursuant to which the Parent Borrower or any Subsidiary is or may  become obligated to make (a) any payment in connection with a purchase by any third party from  a person other than the Parent Borrower or any Subsidiary of any Equity Interest or Restricted  Indebtedness or (b) any payment (other than on account of a permitted purchase by it of any Equity  Interest or Restricted Indebtedness) the amount of which is determined by reference to the price  or value at any time of any Equity Interest or Restricted Indebtedness; provided that no phantom  stock or similar plan providing for payments only to current or former directors, officers or  employees of the Parent Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed  to be a Synthetic Purchase Agreement.  “Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,  assessments, charges, liabilities or withholdings imposed by any Governmental Authority,  including any interest, additions to tax or penalties applicable thereto.  





 






  45  US-DOCS\125501258.12  “Total Australian Revolving Commitment” shall mean, at any time, the aggregate amount  of the Australian Revolving Commitments, as in effect at such time.  “Total Canadian Revolving Commitment” shall mean, at any time, the aggregate amount  of the Canadian Revolving Commitments, as in effect at such time.  “Total Net Debt” at any time shall mean (a) the Indebtedness of the Parent Borrower and  its Subsidiaries at such time (excluding Indebtedness of the type described in clause (i) of the  definition of such term, except to the extent of any unreimbursed drawings thereunder), minus (b)  the aggregate amount of  Unrestricted Cash of the Parent Borrower and its Subsidiaries at such  time, provided, that if there are (1) any Loans then outstanding or (2) any drawn and unreimbursed  Letters of Credit with a face amount of not less than U.S.$1,000,000 individually, and  U.S.$3,000,000 in the aggregate for all such Letters of Credit, that have not been reimbursed in  accordance with Section 2.21(e), the amount of this clause (b) shall not exceed $30,000,000.  “Total Net Leverage Ratio” shall mean, on any date, the ratio of Total Net Debt on such  date to Consolidated EBITDA for the period of four consecutive fiscal quarters most recently  ended on or prior to such date for which financial statements have been delivered pursuant to  Section 5.04(a) or (b) or for which comparable financial statements have been filed with the SEC.   Solely for purposes of this definition, if, at any time the Total Net Leverage Ratio is being  determined, the Parent Borrower or any Subsidiary shall have completed a Permitted Acquisition  or Asset Sale the consideration of which is greater than U.S.$25,000,000 since the beginning of  the relevant four fiscal quarter period, the Total Net Leverage Ratio shall be determined on a pro  forma basis (using the criteria therefor described in Section 6.04(i)) as if such Permitted  Acquisition or Asset Sale, and any related incurrence or repayment of Indebtedness, had occurred  at the beginning of such period.    “Total U.S. Revolving Commitment” shall mean, at any time, the aggregate amount of the  U.S. Revolving Commitments, as in effect at such time.  “Transactions” shall mean, collectively, (a) the entering by the Loan Parties into Loan  Documents to which they are to be a party and (b) the payment of the fees and expenses incurred  in connection with the consummation of the foregoing.  “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference  to which interest on such Loan or on the Loans comprising such Borrowing is determined.  For  purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate, the Alternate Base Rate,  the Canadian Prime Rate, the U.S. Base Rate, the BBSY Rate and the B/A Discount Rate  applicable to Bankers’ Acceptances and B/A Equivalent Loans.  “UCC” shall mean the Uniform Commercial Code as the same may, from time to time, be  in effect in the State of New York; provided, however, in the event that, by reason of mandatory  provisions of law, any or all of the attachment, perfection or priority of the security interest in any  Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than  the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in  such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection  or priority and for purposes of definitions related to such provisions.  





 






  46  US-DOCS\125501258.12  “UKBA” shall mean the U.K. Bribery Act 2010.  “UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined  under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom  Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook  (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority,  which includes certain credit institutions and investment firms, and certain Affiliates of such credit  institutions or investment firms.  “Unrestricted Cash” shall mean, as of any date of determination, the aggregate amount of  all cash and Permitted Investments on the consolidated balance sheet of the Parent Borrower and  its Subsidiaries that are not “restricted” for purposes of GAAP; provided, however, that the  aggregate amount of Unrestricted Cash shall not (i) include any cash or Permitted Investments that  are subject to a Lien (other than any Lien in favor of any Collateral Agent and Permitted Liens  (excluding those Permitted Liens arising under Sections 6.02(e), 6.02(f) and 6.02(i)) or (ii) include  any cash or Permitted Investments that are restricted by contract, law or material adverse tax  consequences from being applied to repay any Obligations as determined by the Borrower in good  faith.  “U.S. Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the  rate of interest per annum publicly announced from time to time by the Canadian Administrative  Agent as its base rate in effect at its principal office in Toronto, Ontario for determining interest  rates on U.S. dollar-denominated commercial loans made in Canada, (b) the Federal Funds  Effective Rate in effect on such day plus 1.0% and (c) the sum of the Adjusted LIBO Rate in effect  for such day (or if such day is not a Business Day, the immediately preceding Business Day) for a  deposit in U.S. dollars with a maturity of one month plus 1⁄2 of 1.0%.  Each change in the U.S. Base  Rate shall be effective on the date such change is publicly announced as being effective; provided  that if the rate determined above shall ever be less than zero, such rate shall be deemed to be zero  for the purposes of this Agreement.  “U.S. Borrower” shall have the meaning assigned to such term in the preamble hereto.  “U.S. Collateral” shall mean all “Collateral” as defined in any U.S. Security Document.  “U.S. Collateral Agent” shall have the meaning assigned to such term in the preamble  hereto.  “U.S. Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a)(i).  “U.S. Dollar Equivalent” shall mean, on any date of determination, with respect to any  amount in Canadian dollars, Australian dollars or an Alternative Currency, the equivalent in U.S.  dollars of such amount, determined by the Administrative Agent using the Exchange Rate then in  effect.  “U.S. Guarantee Agreement” shall mean the U.S. Guarantee Agreement, substantially in  the form of Exhibit C-3, among the U.S. Borrower, the U.S. Subsidiary Guarantors and the U.S.  Collateral Agent for the benefit of the Secured Parties.  





 






  47  US-DOCS\125501258.12  “U.S. L/C Exposure” shall mean at any time the sum of (a) the U.S. Dollar Equivalent of  the aggregate undrawn amount of all outstanding U.S. Letters of Credit at such time plus (b) the  U.S. Dollar Equivalent of the aggregate principal amount of all L/C Disbursements in respect of  U.S. Letters of Credit that have not yet been reimbursed at such time.  The U.S. L/C Exposure of  any U.S. Revolving Lender at any time shall mean its U.S. Revolving Pro Rata Percentage of the  aggregate U.S. L/C Exposure at such time.  “U.S. L/C Participation Fee” shall have the meaning assigned to such term in  Section 2.05(c).  “U.S. Lenders” shall mean the Lenders having U.S. Revolving Commitments or  outstanding U.S. Loans.  “U.S. Loan” shall mean a U.S. Revolving Credit Loan.  Each U.S. Loan shall be an ABR  Loan or a Eurocurrency Loan.  “U.S. Owned Subsidiary” shall mean a Foreign Subsidiary of (i) the U.S. Borrower or (ii)  a Subsidiary of the Parent Borrower that is a U.S. Person.  None of the Material Subsidiaries on  the Closing Date and their successors shall be considered a U.S. Owned Subsidiary.  “U.S. Person” shall mean any person that is a “United States person” as defined in Section  7701(a)(30) of the Code.  “U.S. Pledge Agreement” shall mean the U.S. Pledge Agreement, substantially in the form  of Exhibit D-2, among the U.S. Borrower, the Subsidiaries party thereto and the U.S. Collateral  Agent for the benefit of the Secured Parties.  “U.S. Revolving Borrowing” shall mean group of U.S. Revolving Credit Loans of a single  Type made, converted or continued by the U.S. Revolving Lenders on a single date and, in the  case of a Eurocurrency Borrowing, as to which a single Interest Period is in effect.  “U.S. Revolving Commitment” shall mean, with respect to each U.S. Revolving Lender, the  commitment of such U.S. Revolving Lender to (a) make U.S. Revolving Credit Loans hereunder,  (b) purchase participations in the U.S. L/C Exposure and (c) purchase participations in U.S. Swing  Line 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 under the caption “U.S. Revolving  Commitment”, or in the Assignment and Acceptance or Lender Joinder Agreement pursuant to  which such U.S. Revolving Lender assumed its U.S. Revolving Commitment, as applicable, as the  same may be (i) increased from time to time pursuant to Section 2.25, (ii) reduced from time to  time pursuant to Section 2.09 and (iii) reduced or increased from time to time pursuant to  assignments by or to such U.S. Revolving Lender pursuant to Section 9.04.  The aggregate amount  of the U.S. Revolving Commitments as of the Closing Date is U.S.$10,000,000.  “U.S. Revolving Credit Exposure” shall mean, with respect to any U.S. Revolving Lender  at any time, the aggregate principal amount at such time of all outstanding U.S. Revolving Credit  Loans of such U.S. Revolving Lender, plus the U.S. Dollar Equivalent of the aggregate amount at  such time of such U.S. Revolving Lender’s U.S. Revolving Pro Rata Percentage of the U.S. L/C  





 






  48  US-DOCS\125501258.12  Exposure plus such U.S. Revolving Lender’s U.S. Revolving Pro Rata Percentage of the  outstanding amount all U.S. Swing Line Loans.  “U.S. Revolving Credit Facility” shall mean at any time the aggregate amount of the U.S.  Revolving Commitments of the U.S. Revolving Lenders at such time.  “U.S. Revolving Credit Loan” shall mean the U.S. dollar-denominated Revolving Credit  Loans made by the U.S. Revolving Lenders to the U.S. Borrower.  “U.S. Revolving Lenders” shall mean Lenders having U.S. Revolving Commitments,  outstanding U.S. Revolving Credit Loans, participations in U.S. Letters of Credit pursuant to  Section 2.21(d) or in outstanding U.S. Swing Line Loans pursuant to Section 2.23.  “U.S. Revolving Pro Rata Percentage” of any U.S. Revolving Lender, subject to any  adjustment as provided in Section 2.24(c) or 2.25(a), the percentage of the aggregate U.S.  Revolving Commitments represented by such U.S. Revolving Lender’s U.S. Revolving  Commitment; provided that if the U.S. Revolving Commitments have terminated, the U.S.  Revolving Pro Rata Percentages of the U.S. Revolving Lenders shall be determined based upon  the U.S. Revolving Commitments most recently in effect, giving effect to any assignments.  “U.S. Security Agreement” shall mean the U.S. Security Agreement, substantially in the  form of Exhibit E-3, among the U.S. Borrower, the Subsidiaries party thereto and the U.S.  Collateral Agent for the benefit of the Secured Parties.  “U.S. Security Documents” shall mean the U.S. Security Agreement, the U.S. Pledge  Agreement and each other Security Document to which the U.S. Borrower or any Domestic  Subsidiary is a party and that purports to grant a Lien in the assets of any such person in favor of  the U.S. Collateral Agent for the benefit of the Secured Parties.  “U.S. Special Resolution Regime” shall have the meaning provided in Section 9.25.  “U.S. Subsidiary Guarantor” shall mean each Domestic Subsidiary of the U.S. Borrower  listed on Schedule 1.01(b), and each other Domestic Subsidiary that is or becomes a party to the  U.S. Guarantee Agreement.  “U.S. Swing Line Borrowing” shall mean a borrowing of a U.S. Swing Line Loan pursuant  to Section 2.23(a)(i) or, if an AutoBorrow Agreement is in effect, any transfer of funds pursuant  to such AutoBorrow Agreement.  “U.S. Swing Line Lender” shall mean RBC in its capacity as provider of U.S. Swing Line  Loans, or any successor swing line lender hereunder.  “U.S. Swing Line Loan” shall have the meaning assigned to such term in Section 2.23(a)(i).  “U.S. Swing Line Sublimit” shall mean U.S.$10,000,000. The U.S. Swing Line Sublimit is  part of, and not in addition to, the U.S. Revolving Commitments.   





 






  49  US-DOCS\125501258.12  “U.S. Tax Compliance Certificate” shall have the meaning assigned to such term in Section  2.19(g)(ii)(B)(3).  “wholly owned Subsidiary” of any person shall mean (a) any subsidiary of such person of  which securities (except for directors’ qualifying shares) or other ownership interests representing  100% of the equity or 100% of the ordinary voting power are, at the time any determination is  being made, owned, controlled or held by such person or one or more wholly owned subsidiaries  of such person or by such person and one or more wholly owned subsidiaries of such person or (b)  any subsidiary that is organized in a foreign jurisdiction and is required by the applicable laws and  regulations of such foreign jurisdiction to be partially owned by the government of such foreign  jurisdiction or individual or corporate citizens of such foreign jurisdiction, provided that such  person, directly or indirectly, owns the remaining Equity Interests in such subsidiary and, by  contract or otherwise, controls the management and business of such subsidiary and derives  economic benefits of ownership of such subsidiary to substantially the same extent as if such  subsidiary were a wholly owned subsidiary.  “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a  complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I  of Subtitle E of Title IV of ERISA.  “Withholding Agent” shall mean any Loan Party and the Administrative Agent.  “Write-Down and Conversion Powers” shall mean  (a) with respect to any EEA Resolution Authority, the write-down and conversion  powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the  applicable EEA Member Country, which write-down and conversion powers are described in the  EU Bail-In Legislation Schedule; and   (b) with respect to the United Kingdom, any powers of the applicable UK Resolution  Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability  of any UK Financial Institution or any contract or instrument under which that liability arises, to  convert all or part of that liability into shares, securities or obligations of that person or any other  person, to provide that any such contract or instrument is to have effect as if a right had been  exercised under it or to suspend any obligation in respect of that liability or any of the powers  under that Bail-In Legislation that are related to or ancillary to any of those powers.  SECTION 1.02 Terms Generally.  The definitions in Section 1.01 shall apply equally  to both 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”; and the words “asset” and “property” shall be construed as having the same meaning and  effect and to refer to any and all tangible and intangible assets and properties, including cash,  securities, accounts and contract rights.  Unless the context requires otherwise (a) any definition  of or reference to any agreement, instrument or other document herein shall be construed as  referring to such agreement, instrument or other document as from time to time amended,  





 






  50  US-DOCS\125501258.12  supplemented or otherwise modified (subject to any restrictions on such amendments, supplements  or modifications set forth herein), (b) any reference herein to any person shall be construed to  include such person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,”  and words of similar import, shall be construed to refer to this Agreement in its entirety and not to  any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and  Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to,  this Agreement, any references to a term defined in the PPSA (Alberta) or the PPSA (Australia)  herein shall, unless otherwise specified, have the same meaning given to that term in the PPSA  (Alberta) or PPSA (Australia) (as applicable) and (e) any reference to any law or regulation herein  shall, unless otherwise specified, refer to such law or regulation as amended, modified or  supplemented from time to time.  Except as otherwise expressly provided herein, all terms of an  accounting or financial nature shall be construed in accordance with GAAP, as in effect from time  to time; provided, however, that if the Parent Borrower notifies the Administrative Agent that the  Borrowers wish to amend any covenant in Article VI or any related definition to eliminate the  effect of any change in GAAP occurring after the Closing Date on the operation of such covenant  (or if the Administrative Agent notifies the Parent Borrower that the Required Lenders wish to  amend Article VI or any related definition for such purpose), then the Borrowers’ compliance with  such covenant shall be determined on the basis of GAAP in effect immediately before the relevant  change in GAAP became effective, until either such notice is withdrawn or such covenant is  amended in a manner satisfactory to the Parent Borrower and the Required Lenders.   Notwithstanding anything to the contrary in this Agreement or any other Loan Document, for  purposes of calculations made pursuant to the terms of this Agreement or any other Loan  Document, GAAP will be deemed to treat leases that would have been classified as operating  leases in accordance with generally accepted accounting principles in the United States of America  as in effect on December 31, 2013 in a manner consistent with the treatment of such leases under  generally accepted accounting principles in the United States of America as in effect on December  31, 2013, notwithstanding any modifications or interpretive changes thereto that may occur  thereafter.  For all purposes under the Loan Documents, in connection with any division or plan  of division under Delaware law (or any comparable event under a different jurisdiction’s laws):  (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or  liability of a different Person, then it shall be deemed to have been transferred from the original  Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person  shall be deemed to have been organized and acquired on the first date of its existence by the holders  of its Equity Interests at such time.  SECTION 1.03 Several Obligations; Power of Attorney.  Each of the U.S. Borrower  and the Australian Borrower hereby appoints the Parent Borrower and each of its officers to be its  attorneys in fact (its “Attorneys”) and in its name and on its behalf and as its act and deed or  otherwise to sign all documents and carry out all such acts as are necessary or appropriate in  connection with executing any Borrowing Request, any Loan Documents or any other instruments,  certificates or documents delivered thereunder or in connection therewith (collectively, the  “Documents”).  This Power of Attorney shall be valid for the duration of the term of this  Agreement.  The U.S. Borrower and the Australian Borrower hereby ratifies any and all acts which  any of its Attorneys shall do in order to execute on its behalf, or in connection with, the Documents  mentioned herein.  





 






  51  US-DOCS\125501258.12  SECTION 1.04 Classification of Loans and Borrowings.  For purposes of this  Agreement, Loans may be classified and referred to by Class (e.g., a “U.S. Revolving Credit  Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency U.S.  Revolving Credit Loan”).  Borrowings also may be classified and referred to by Class (e.g., a “U.S.  Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g.,  a “Eurocurrency U.S. Revolving Borrowing”).  SECTION 1.05 Additional Alternative Currencies.  The Borrowers may from time to  time request that Letters of Credit be issued in a currency other than those specifically listed in the  definition of “Alternative Currency;” provided that such requested currency is a lawful currency  that is readily available and freely transferable and convertible into U.S. dollars.  Such request  shall be subject to the approval of the Administrative Agent and the Applicable Issuing Bank.  Any  such request shall be made to the Administrative Agent not later than 12:00 p.m. (Standard Time),  ten Business Days prior to the date of the requested Letter of Credit (or such other time or date as  may be agreed by the Administrative Agent and the Applicable Issuing Bank, in its or their sole  discretion).  The Administrative Agent shall promptly notify the Applicable Issuing Bank thereof.   The Applicable Issuing Bank shall notify the Administrative Agent, not later than 12:00 p.m.  (Standard Time), five Business Days after receipt of such request whether it consents, in its sole  discretion, to the issuance of Letters of Credit, as the case may be, in such requested currency.   Any failure by the Applicable Issuing Bank to respond to such request within the time period  specified in the preceding sentence shall be deemed to be a refusal by such Issuing Bank to issue  the requested Letters of Credit in such requested currency at that time.  If the Administrative Agent  and the Applicable Issuing Bank consent to the issuance of Letters of Credit in such requested  currency, the Administrative Agent shall so notify the Borrowers and such currency shall  thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any  Letter of Credit issuances.  If the Administrative Agent shall fail to obtain consent to any request  for an additional currency under this Section 1.05, the Administrative Agent shall promptly so  notify the Borrowers.  SECTION 1.06 Cashless Rolls.  Notwithstanding anything to the contrary contained  in this Agreement or in any other Loan Document, any Lender may exchange, continue or roll  over all or a portion of its Canadian Term Loans (as defined in the Existing Credit Agreement) in  connection with this Agreement, pursuant to a cashless settlement mechanism approved by the  Borrower, the Administrative Agent and such Lender.  ARTICLE II    THE CREDITS  SECTION 2.01 Commitments.  Subject to the terms and conditions and relying upon  the representations and warranties herein set forth:  (a) each U.S. Revolving Lender agrees, severally and not jointly, to make U.S.  Revolving Credit Loans in U.S. dollars to the U.S. Borrower, at any time and from time to time on  or after the Closing Date, and until the earlier of the Maturity Date and the termination of the U.S.  Revolving Commitment of such Lender in accordance with the terms hereof, in an aggregate  





 






  52  US-DOCS\125501258.12  principal amount at any time outstanding that will not result in such Lender’s U.S. Revolving  Credit Exposure exceeding such Lender’s U.S. Revolving Commitment;  (b) each Canadian Revolving Lender agrees, severally and not jointly, to make  Canadian Revolving Credit Loans in Canadian dollars and/or U.S. dollars to the Parent Borrower  at any time and from time to time on or after the Closing Date, and until the earlier of the Maturity  Date and the termination of the Canadian Revolving Commitment of such Lender in accordance  with the terms hereof, in an aggregate principal amount at any time outstanding that will not result  in such Lender’s Canadian Revolving Credit Exposure exceeding such Lender’s Canadian  Revolving Commitment;  (c) each Canadian Term Lender agrees, severally and not jointly, to make  Canadian Term Loan in Canadian dollars to the Parent Borrower on the Closing Date, in a principal  amount not to exceed such Lender’s Canadian Term Commitment;  (d) each Australian Lender agrees, severally and not jointly, to make Australian  Revolving Credit Loans in Australian dollars and/or U.S. dollars to the Australian Borrower at any  time and from time to time on or after the Closing Date, and until the earlier of the Maturity Date  and the termination of the Australian Revolving Commitment of such Lender in accordance with  the terms hereof, in an aggregate principal amount at any time outstanding that will not result in  such Lender’s Australian Revolving Credit Exposure exceeding such Lender’s Australian  Revolving Commitment;  (e) the U.S. Swing Line Lender agrees to make Swing Line Loans in U.S.  dollars to the U.S. Borrower in accordance with Section 2.23;   (f) the Canadian Swing Line Lender agrees to make Swing Line Loans in  Canadian dollars or U.S. dollars to the Parent Borrower in accordance with Section 2.23; and  (g) within the limits set forth in the preceding sentence and subject to the terms,  conditions and limitations set forth herein, the Borrowers may borrow, prepay and reborrow  Revolving Credit Loans.  SECTION 2.02 Loans.  (a) Each Loan shall be made as part of a Borrowing consisting  of Loans made by the Applicable Lenders ratably in accordance with their Applicable Pro Rata  Percentages of the applicable Facility; provided, however, that the failure of any Lender to make  any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being  understood, however, that no Lender shall be responsible for the failure of any other Lender to  make any Loan required to be made by such other Lender).  Except for Loans deemed made  pursuant to Section 2.02(g), the Loans comprising any Borrowing shall be in an aggregate  principal amount that is (i) in the case of ABR Loans or U.S. Base Rate Loans, an integral multiple  of U.S.$100,000 and in a minimum amount of U.S.$1,000,000, (ii) in case of Eurocurrency Loans,  an integral multiple of U.S.$1,000,000 and in a minimum amount of U.S.$3,000,000, (iii) in the  case of Canadian dollar-denominated Loans, an integral multiple of C$100,000 and in a minimum  amount of C$1,000,000, (iv) in the case of Australian dollar-denominated Loans, an integral  multiple of AUD$100,000 and in a minimum amount of AUD$1,000,000 or (v) equal to the  remaining available balance of the applicable Commitment.  





 






  53  US-DOCS\125501258.12  (b) Subject to Sections 2.08 and 2.14, (i) each Borrowing (other than a Swing  Line Borrowing) denominated in U.S. dollars shall be comprised entirely of ABR Loans (if made  to the U.S. Borrower), U.S. Base Rate Loans (if made to the Parent Borrower) or Eurocurrency  Loans as the Applicable Borrower may request pursuant to Section 2.03, (ii) each Borrowing  (other than a Swing Line Borrowing) denominated in Canadian dollars shall be comprised entirely  of B/A Loans or Canadian Prime Rate Loans as the Parent Borrower may request pursuant to  Section 2.03 and (iii) each Borrowing denominated in Australian dollars shall be comprised  entirely of BBSY Rate Loans.  Each Lender may at its option make any Eurocurrency Loan,  Canadian Revolving Credit Loan or Australian Revolving Credit Loan denominated in U.S. dollars  by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided  that any exercise of such option shall not affect the obligation of any Borrower to repay such Loan  in accordance with the terms of this Agreement or cause any Borrower to incur any cost under  Section 2.19 that would not have been incurred but for the exercise of such option.  Borrowings of  more than one Type may be outstanding at the same time; provided, however, that the Borrowers  shall not be entitled to request any Borrowing that, if made, would result in more than ten  Eurocurrency Borrowings outstanding hereunder at any time, more than ten B/A Borrowings  outstanding hereunder at any time, or more than ten BBSY Rate Borrowings outstanding hereunder  at any time.  For purposes of the foregoing, Eurocurrency Borrowings or BBSY Rate Borrowings  having different Interest Periods and B/A Borrowings having different Contract Periods, regardless  of whether they commence on the same date, shall be considered separate Borrowings.  (c) Except with respect to Loans made pursuant to Section 2.02(g), each U.S.  Lender making Loans denominated in U.S. dollars to the U.S. Borrower shall make each such  Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately  available funds to such account as the Administrative Agent may designate not later than 1:00 p.m.  (Standard Time) in the case of a Eurocurrency Borrowing, or 1:00 p.m. (Standard Time) in the  case of an ABR Borrowing, and the Administrative Agent shall promptly credit the amounts so  received to an account designated by the U.S. Borrower in the applicable Borrowing Request.   Except with respect to Loans made pursuant to Section 2.02(g), each Canadian Lender making  Loans to the Parent Borrower shall make each Canadian Loan to be made by it hereunder on the  proposed date thereof by wire transfer of immediately available funds to such account in Toronto,  Ontario as the Canadian Administrative Agent may designate not later than 1:00 p.m. (Standard  Time) in the case of a Eurocurrency Borrowing or a B/A Borrowing, or 1:00 p.m. (Standard Time)  in the case of a Canadian Prime Rate Borrowing or U.S. Base Rate Borrowing, and the Canadian  Administrative Agent shall promptly credit the amounts so received to an account designated by  the Parent Borrower in the applicable Borrowing Request.  Except with respect to Loans made  pursuant to Section 2.02(g), each Australian Lender making Loans to the Australian Borrower  shall make each Australian Revolving Credit Loan to be made by it hereunder on the proposed  date thereof by wire transfer of immediately available funds to such account as the Australian  Administrative Agent may designate not later than 3:00 p.m. (Sydney time), and the Australian  Administrative Agent shall promptly credit the amounts so received to an account designated by  the Australian Borrower in the applicable Borrowing Request.  (d) Unless the Applicable Administrative Agent shall have received notice  from a Lender prior to the time of any Borrowing that such Lender will not make available to the  Applicable Administrative Agent such Lender’s Applicable Pro Rata Percentage of such  Borrowing, the Applicable Administrative Agent may assume that such Lender has made such  





 






  54  US-DOCS\125501258.12  portion available to the Applicable Administrative Agent on the date of such Borrowing in  accordance with paragraph (c) above and the Applicable Administrative Agent may, in reliance  upon such assumption, make available to the Applicable Borrower on such date a corresponding  amount.  If the Applicable Administrative Agent shall have so made funds available then, to the  extent that such Lender shall not have made such portion available to the Applicable  Administrative Agent, such Lender and the Applicable Borrower severally agree to repay to the  Applicable Administrative Agent forthwith on demand such corresponding amount together with  interest thereon, for each day from the date such amount is made available to the Applicable  Borrower until the date such amount is repaid to the Applicable Administrative Agent at (i) in the  case of a Borrower, a rate per annum equal to the interest rate applicable to Loans pursuant to  Section 2.06(a), 2.06(c) or 2.06(f), as the case may be, and (ii) in the case of such Lender, at the  greater of the Federal Funds Effective Rate and a rate determined by the Applicable Administrative  Agent in accordance with banking industry rules on interbank compensation (which determination  shall be conclusive absent manifest error).  If such Borrower and such Lender shall pay such  interest to the Applicable Administrative Agent for the same or an overlapping period, the  Applicable Administrative Agent shall promptly remit to the Applicable Borrower the amount of  such interest paid by such Borrower for such period.  If such Lender shall repay to the Applicable  Administrative Agent such corresponding amount, such amount shall constitute such Lender’s  Loan as part of such Borrowing for purposes of this Agreement; provided, however, that the  foregoing does not constitute a waiver by any Borrower of any claim for damages permitted  hereunder and attributable to such Lender.  Any payment by a Borrower shall be without prejudice  to any claim any Borrower may have against a Lender that shall have failed to make such payment  to the Applicable Administrative Agent.  (e) Unless the Applicable Administrative Agent shall have received notice  from the Applicable Borrower prior to the date on which any payment is due to the Applicable  Administrative Agent for the account of the Applicable Lenders, the Applicable Issuing Bank or  the Applicable Swing Line Lender hereunder that the Applicable Borrower will not make such  payment, the Applicable Administrative Agent may assume that the Applicable Borrower has  made such payment on such date in accordance herewith and may, in reliance upon such  assumption, distribute to the Applicable Lenders, the Applicable Issuing Bank or the Applicable  Swing Line Lender, as the case may be, the amount due.  In such event, if the Applicable Borrower  has not in fact made such payment, then each of the Applicable Lenders, the Applicable Issuing  Bank or the Applicable Swing Line Lender, as the case may be, severally agrees to repay to the  Applicable Administrative Agent forthwith on demand the amount so distributed to such  Applicable Lender, such Applicable Issuing Bank or the Applicable Swing Line Lender, with  interest thereon, for each day from and including the date such amount is distributed to it to but  excluding the date of payment to the Applicable Administrative Agent, at the greater of the Federal  Funds Effective Rate and a rate determined by the Applicable Administrative Agent in accordance  with banking industry rules on interbank compensation.   (f) Notwithstanding any other provision of this Agreement, the Borrowers shall  not be entitled to request any Borrowing if the Interest Period or Contract Period requested with  respect thereto would end after the Maturity Date.  (g) If an Issuing Bank shall not have received from the U.S. Borrower, the  Parent Borrower or the Australian Borrower, as the case may be, the payment required to be made  





 






  55  US-DOCS\125501258.12  by Section 2.21(e) within the time specified in such Section, such Issuing Bank will promptly  notify the Applicable Administrative Agent of the U.S. Dollar Equivalent of such L/C  Disbursement and the Applicable Administrative Agent will promptly notify each U.S. Revolving  Lender, Canadian Revolving Lender or Australian Lender, as applicable, of the U.S. Dollar  Equivalent of such L/C Disbursement and its U.S. Revolving Pro Rata Percentage, Canadian  Revolving Pro Rata Percentage or Australian Revolving Pro Rata Percentage, as applicable,  thereof.  Each such Revolving Lender shall pay by wire transfer of immediately available funds to  the Applicable Administrative Agent not later than 2:00 p.m. (Standard Time) on such date (or, if  such Revolving Lender shall have received such notice later than 12:00 p.m. (Standard Time) on  any day, not later than 11:00 a.m. (Standard Time) on the immediately following Business Day),  an amount equal to such Lender’s U.S. Revolving Pro Rata Percentage, Canadian Revolving Pro  Rata Percentage or Australian Revolving Pro Rata Percentage, as applicable, of the U.S. Dollar  Equivalent of such L/C Disbursement (it being understood that such amount shall be deemed to  constitute an ABR Loan, a Canadian Prime Rate Loan or a BBSY Rate Loan, as applicable, of  such Lender and such payment shall be deemed to have reduced the U.S. L/C Exposure, the  Canadian L/C Exposure or the Australian L/C Exposure, as applicable), and the Applicable  Administrative Agent will promptly pay to such Issuing Bank amounts so received by it from such  Lenders.  The Applicable Administrative Agent will promptly pay to such Issuing Bank any  amounts received by it from a Borrower pursuant to Section 2.21(e) prior to the time that any  Lender makes any payment pursuant to this paragraph (g); any such amounts received by the  Applicable Administrative Agent thereafter will be promptly remitted by the Applicable  Administrative Agent to the Lenders that shall have made such payments and to such Issuing Bank,  as their interests may appear.  If any Lender shall not have made its U.S. Revolving Pro Rata  Percentage, Canadian Revolving Pro Rata Percentage or Australian Revolving Pro Rata  Percentage, as applicable, of such L/C Disbursement available to the Applicable Administrative  Agent as provided above, such Lender and the Borrower for whose (or for whose Subsidiary’s)  account such L/C Disbursement was made severally agree to pay interest on such amount, for each  day from and including the date such amount is required to be paid in accordance with this  paragraph to but excluding the date such amount is paid, to the Applicable Administrative Agent  for the account of such Issuing Bank at (i) in the case of such Borrower, a rate per annum equal to  the interest rate applicable to Loans pursuant to Section 2.06(a), 2.06(c) or 2.06(f), as the case may  be, and (ii) in the case of such Lender, at the greater of the Federal Funds Effective Rate and a rate  determined by the Applicable Administrative Agent in accordance with banking industry rules on  interbank compensation (which determination shall be conclusive absent manifest error);  provided, however, that the foregoing does not constitute a waiver by any Borrower of any claim  for damages permitted hereunder and attributable to such Lender.  In addition, if there is a change  in the rate of exchange prevailing between the Alternative Currency of such L/C Disbursement  and the U.S. Dollar Equivalent thereof as determined by the Applicable Administrative Agent on  the date of the L/C Disbursement and the date of actual payment of the amount due (whether by a  U.S. Revolving Lender, a Canadian Revolving Lender, an Australian Lender or the Borrower for  whose (or for whose Subsidiary’s) account such L/C Disbursement was made), the Borrower for  whose (or for whose Subsidiary’s) account such L/C Disbursement was made covenants and agrees  to pay, or cause to be paid, such additional amounts, if any, as may be necessary to ensure that the  amount paid in U.S. dollars, when converted at the rate of exchange prevailing on the date of  payment, will produce the U.S. Dollar Equivalent of such L/C Disbursement which could have  been purchased with the amount of the Alternative Currency of such L/C Disbursement at the rate  





 






  56  US-DOCS\125501258.12  of exchange prevailing on the date of the L/C Disbursement.  For purposes of determining the U.S.  Dollar Equivalent or rate of exchange for this Section, such amounts shall include any premium  and costs payable in connection with the purchase of the Alternative Currency.  SECTION 2.03 Borrowing Procedure.  (a) In order to request a Borrowing (other than  a deemed Borrowing pursuant to Section 2.02(g) or a Swing Line Borrowing as to which this  Section 2.03(a) shall not apply), the applicable U.S. Borrower (or the Parent Borrower on its  behalf) shall hand deliver, fax or send by electronic communication (e-mail) (or by telephone  notice promptly confirmed by a written, fax or electronic communication (e-mail)) to the  Administrative Agent a duly completed Borrowing Request (x) in the case of a Eurocurrency  Borrowing, not later than 1:00 p.m. (Standard Time) three Business Days before a proposed  Borrowing, and (y) in the case of an ABR Borrowing not later than 1:00 p.m. (Standard Time) one  Business Day before a proposed Borrowing.  Each such Borrowing Request shall be irrevocable,  shall be signed by or on behalf of a Responsible Officer of such U.S. Borrower (or the Parent  Borrower on its behalf) and shall specify the following information: (i)  [reserved], (ii) whether  such Borrowing is to be a Eurocurrency Borrowing or an ABR Borrowing; (iii) the date of such  Borrowing (which shall be a Business Day); (iv) the number and location of the account to which  funds are to be disbursed (which shall be an account that complies with the requirements of Section  2.02(c)); (v) the amount of such Borrowing; and (vi) if such Borrowing is to be a Eurocurrency  Borrowing, the Interest Period with respect thereto; provided, however, that, notwithstanding any  contrary specification in any Borrowing Request, each requested Borrowing shall comply with the  requirements set forth in Section 2.02.  If no election as to the Type of Borrowing is specified in  any such notice, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period  with respect to any Eurocurrency Borrowing is specified in any such notice, then the Parent  Borrower shall be deemed to have selected an Interest Period of one month’s duration.  The  Administrative Agent shall promptly advise the Applicable Lenders of any notice given pursuant  to this Section 2.03(a) (and the contents thereof), and of each Lender’s portion of the requested  Borrowing.  (b) In order to request a Borrowing (other than a deemed Borrowing pursuant  to Section 2.02(g) or a Swing Line Borrowing as to which Section 2.03(b) shall not apply), the   Parent Borrower shall hand deliver, fax or send by electronic communication (e-mail) (or by  telephone notice promptly confirmed by a written, fax or electronic communication (e-mail)) to  the Canadian Administrative Agent a duly completed Borrowing Request (x) in the case of a B/A  Borrowing or a Eurocurrency Borrowing, not later than 1:00 p.m. (Standard Time) three Business  Days before the proposed Borrowing and (y) in the case of a Canadian Prime Rate Borrowing or  U.S. Base Rate Borrowing, not later than 1:00 p.m. (Standard Time) one Business Day before the  proposed Borrowing.  Each such Borrowing Request shall be irrevocable, shall be signed by or on  behalf of a Responsible Officer of the Parent Borrower and shall specify the following information:  (i) in the case of a Canadian Revolving Borrowing, whether the Borrowing then being requested  is to be denominated in Canadian dollars or U.S. dollars; (ii) whether such Borrowing is to be a  Canadian Prime Rate Borrowing, a B/A Borrowing, a U.S. Base Rate Borrowing or a Eurocurrency  Borrowing; (iii) the date of such Borrowing (which shall be a Business Day); (iv) the number and  location of the account to which funds are to be disbursed (which shall be an account that complies  with the requirements of Section 2.02(c)); (v) the amount of such Borrowing; and (vi) if such  Borrowing is to be a B/A Borrowing or a Eurocurrency Borrowing, the Contract Period or Interest  Period, respectively, therefor; provided, however, that, notwithstanding any contrary specification  





 






  57  US-DOCS\125501258.12  in any Borrowing Request, each requested Borrowing shall comply with the requirements set forth  in Section 2.02.  If no election as to the Type of Borrowing is specified in any such notice, then  the requested Borrowing shall be a Canadian Prime Rate Borrowing (if denominated in Canadian  dollars) or a U.S. Base Rate Borrowing (if denominated in U.S. dollars).  If no Contract Period or  Interest Period with respect to a B/A Borrowing or Eurocurrency Borrowing has been specified in  any such notice, then the Parent Borrower shall be deemed to have selected a Contract Period or  Interest Period of one month’s duration.  The Canadian Administrative Agent shall promptly  advise the Applicable Lenders of any notice given pursuant to this Section 2.03(b) (and the  contents thereof), and of each Lender’s portion of the requested Borrowing.  (c) In order to request a Borrowing (other than a deemed Borrowing pursuant  to Section 2.02(g), as to which this Section 2.03(c) shall not apply), the Australian Borrower (or  the Parent Borrower on its behalf) shall hand deliver, fax or send by electronic communication (e- mail) (or by telephone notice promptly confirmed by a written, fax or electronic communication  (e-mail)) to the Australian Administrative Agent a duly completed Borrowing Request not later  than 3:00 p.m. (Sydney time) three Business Days before the proposed Borrowing.  Each such  Borrowing Request shall be irrevocable, shall be signed by or on behalf of a Responsible Officer  of the Australian Borrower (or the Parent Borrower on its behalf) and shall specify the following  information: (i) whether the Borrowing then being requested is to be a BBSY Rate Borrowing  denominated in Australian dollars or a Eurocurrency Borrowing denominated in U.S. dollars; (ii)  the date of such Borrowing (which shall be a Business Day); (iii) the number and location of the  account to which funds are to be disbursed (which shall be an account that complies with the  requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v) the Interest Period  therefor; provided, however, that, notwithstanding any contrary specification in any Borrowing  Request, each requested Borrowing shall comply with the requirements set forth in Section 2.02.   If no Interest Period has been specified in any such notice, then the Australian Borrower shall be  deemed to have selected an Interest Period of one month’s duration.  The Australian  Administrative Agent shall promptly advise the Applicable Lenders of any notice given pursuant  to this Section 2.03(c) (and the contents thereof), and of each Lender’s portion of the requested  Borrowing.  SECTION 2.04 Evidence of Debt; Repayment of Loans.    (a) The U.S. Borrower hereby unconditionally promises to pay to the  Administrative Agent for the account of each U.S. Revolving Lender holding U.S.  Revolving  Credit Loans the then unpaid principal amount of each such Revolving Credit Loan of such Lender  on the Maturity Date.  The Parent Borrower hereby unconditionally promises to pay to the  Canadian Administrative Agent for the account of each Canadian Revolving Lender holding  Canadian Revolving Credit Loans made to such Parent Borrower, the then unpaid principal amount  of each such Revolving Credit Loan of such Canadian Lender on the Maturity Date.  The  Australian Borrower hereby unconditionally promises to pay to the Australian Administrative  Agent for the account of each Australian Lender holding Australian Revolving Credit Loans made  to the Australian Borrower, the then unpaid principal amount of each such Revolving Credit Loan  of such Australian Lender on the Maturity Date.  (b) The Parent Borrower hereby unconditionally promises to pay in Canadian  Dollars to the Canadian Administrative Agent for the account of each Canadian Term Lender  





 






  58  US-DOCS\125501258.12  holding Canadian Term Loans the principal amounts set forth in Schedule 2.04 on each  corresponding date set forth on such schedule; provided that the Canadian Administrative Agent  shall promptly update Schedule 2.04 upon any repayment or prepayment of Canadian Term Loans,  which updated schedule shall become effective upon delivery to the Parent Borrower.  (c) The U.S. Borrower shall repay each U.S. Swing Line Loan on the Swing  Line Payment Date.  The Parent Borrower shall repay each Canadian Swing Line Loan on the  Swing Line Payment Date.  (d) Except for any B/A Loan (the compensation for which is set forth in  Section 2.22), each Loan shall bear interest from and including the date made on the outstanding  principal balance thereof as set forth in Section 2.06.  (e) Each Lender shall maintain in accordance with its usual practice an account  or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan  made by such Lender from time to time, including the amounts of principal and interest payable  and paid such Lender from time to time under this Agreement, and the purchases and sales by such  Lender of participations in Letters of Credit and Swing Line Loans.  (f) The Administrative Agents shall maintain accounts in which they will  record (i) the amount of each Loan made hereunder, the Class, Type and currency thereof and the  Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or  to become due and payable from the Applicable Borrower to each Lender hereunder and (iii) the  amount of any sum received by the Applicable Administrative Agent hereunder from any  Borrower or any Subsidiary Guarantor and each Lender’s share thereof.  (g) The entries made in the accounts maintained pursuant to paragraphs (e)  and (f) above shall be prima facie evidence of the existence and amounts of the obligations therein  recorded; provided, however, that the failure of any Lender or the Administrative Agents to  maintain such accounts or any error therein shall not in any manner affect the obligations of the  Borrowers to repay the Loans in accordance with the terms of this Agreement.  (h) Any Lender may request that Loans made by it hereunder be evidenced by  a promissory note (a “Note”).  In such event, the Applicable Borrower shall execute and deliver to  such Lender a Note or Notes payable to such Lender and its registered assigns and in a form and  substance reasonably acceptable to the Applicable Administrative Agent and the Applicable  Borrower. Notwithstanding any other provision of this Agreement, in the event any Lender shall  request and receive such a Note, the interests represented by such Note shall at all times (including  after any assignment of all or part of such interests pursuant to Section 9.04) be represented by one  or more Notes payable to the payee named therein or its registered assigns.  SECTION 2.05 Fees.  (a) (i) The U.S. Borrower agrees to pay to each U.S. Revolving  Lender, through the Administrative Agent, on the last Business Day of March, June, September  and December in each year, a commitment fee (the “U.S. Commitment Fee”) equal to the  Applicable Percentage on the daily unused amount of the U.S. Revolving Commitments of such  U.S. Revolving Lender to make U.S. Revolving Credit Loans to the U.S. Borrower during the  





 






  59  US-DOCS\125501258.12  preceding quarter. The U.S. Commitment Fee shall be computed on the basis of the actual number  of days elapsed in a year of 360 days.  (ii) The Parent Borrower agrees to pay to each Canadian Revolving  Lender, through the Canadian Administrative Agent, on the last Business Day of March,  June, September and December in each year, a commitment fee (the “Canadian  Commitment Fee”) equal to the Applicable Percentage on the daily unused amount of the  Canadian Revolving Commitments of such Canadian Revolving Lender to make Canadian  Revolving Credit Loans to the Parent Borrower during the preceding quarter.  The  Canadian Commitment Fees shall be computed on the basis of the actual number of days  elapsed in a year of 365 or 366 days, as the case may be.    (iii) The Australian Borrower agrees to pay to each Australian Lender,  through the Australian Administrative Agent, on the last Business Day of March, June,  September and December in each year, a commitment fee (the “Australian Commitment  Fee”; together with the U.S. Commitment Fee and the Canadian Commitment Fees, the  “Commitment Fees”) equal to the Applicable Percentage on the daily unused amount of the  Australian Revolving Commitments of such Australian Lender to make Australian  Revolving Credit Loans to the Australian Borrower during the preceding quarter.  The  Australian Commitment Fee shall be computed on the basis of the actual number of days  elapsed in a year of 365 or 366 days, as the case may be.    (iv) The Commitment Fees due to each Revolving Lender shall  commence to accrue on the Closing Date and shall, in each case, cease to accrue on the  date on which the applicable Revolving Commitment of such Revolving Lender shall  expire or be terminated as provided herein.  For the avoidance of doubt, (A) U.S. Swing  Line Loans are not deducted from the U.S. Revolving Commitments when calculating the  U.S. Commitment Fee under this Section 2.05(a) and (B) Canadian Swing Line Loans are  not deducted from the Canadian Revolving Commitments when calculating the Canadian  Commitment Fees under this Section 2.05(a).  (b) Each Borrower agrees to pay to the Applicable Administrative Agent and  the Lead Arranger, for its own account, the administration and arrangement fees separately agreed  to from time to time by such Borrower and such Administrative Agent or the Lead Arranger,  including, without limitation, the fees set forth in the Fee Letter.  (c) The U.S. Borrower agrees to pay to each U.S. Revolving Lender, through  the Administrative Agent, on the last Business Day of March, June, September and December of  each year, commencing with the first such date to occur after the Closing Date, and on the date on  which the U.S. Revolving Commitment of such Revolving Lender shall be terminated as provided  herein, a fee (the “U.S. L/C Participation Fee”) calculated on such Lender’s U.S. Revolving Pro  Rata Percentage of the daily aggregate U.S. L/C Exposure (in each case excluding the portion  thereof attributable to unreimbursed L/C Disbursements in respect of Letters of Credit) during the  preceding quarter (or shorter period commencing with the Closing Date or ending with the  Maturity Date or the date on which all Letters of Credit have been canceled or have expired and  the Revolving Commitments of all Revolving Lenders shall have been terminated) at a rate equal  to the Applicable Percentage from time to time used to determine the interest rate on Borrowings  





 






  60  US-DOCS\125501258.12  comprised of Eurocurrency Loans pursuant to Section 2.06.  The Parent Borrower agrees to pay to  each Canadian Revolving Lender, through the Canadian Administrative Agent, on the last  Business Day of March, June, September and December of each year, commencing with the first  such date to occur after the Closing Date, and on the date on which the Canadian Revolving  Commitment of such Revolving Lender shall be terminated as provided herein, a fee (the  “Canadian L/C Participation Fee”) calculated on such Lender’s Canadian Revolving Pro Rata  Percentage of the daily aggregate Canadian L/C Exposure (in each case excluding the portion  thereof attributable to unreimbursed L/C Disbursements in respect of Letters of Credit) during the  preceding quarter (or shorter period commencing with the Closing Date or ending with the  Maturity Date or the date on which all Letters of Credit have been canceled or have expired and  the Revolving Commitments of all Revolving Lenders shall have been terminated) at a rate equal  to the Applicable Percentage from time to time used to determine the interest rate on Borrowings  comprised of Eurocurrency Loans pursuant to Section 2.06.  The Australian Borrower agrees to  pay to each Australian Lender, through the Australian Administrative Agent, on the last Business  Day of March, June, September and December of each year, commencing with the first such date  to occur after the Closing Date, and on the date on which the Australian Revolving Commitment  of such Revolving Lender shall be terminated as provided herein, a fee (the “Australian L/C  Participation Fee”; together with the U.S. L/C Participation Fee and the Canadian L/C  Participation Fees, the “L/C Participation Fees”) calculated on such Lender’s Australian  Revolving Pro Rata Percentage of the daily aggregate Australian L/C Exposure (in each case  excluding the portion thereof attributable to unreimbursed L/C Disbursements in respect of Letters  of Credit) during the preceding quarter (or shorter period commencing with the Closing Date or  ending with the Maturity Date or the date on which all Letters of Credit have been canceled or  have expired and the Revolving Commitments of all Revolving Lenders shall have been  terminated) at a rate equal to the Applicable Percentage from time to time used to determine the  interest rate on Borrowings comprised of BBSY Rate Loans pursuant to Section 2.06.  Each  Borrower agrees to pay to the Applicable Issuing Bank with respect to each Letter of Credit issued  at the request of such Borrower, (A) a fronting fee for each Letter of Credit equal to the greater of  (1) 0.125% of the initial stated amount of such Letter of Credit and (2) $600 (or, with respect to  any subsequent increase to the stated amount of any such Letter of Credit, such increase in the  stated amount) thereof, such fee to be payable on the date of such issuance, increase or extension  and (B) issuance, payment, amendment and transfer fees specified from time to time by such  Issuing Bank (collectively, the “Issuing Bank Fees”).  All U.S. L/C Participation Fees and, unless  otherwise agreed by the Applicable Issuing Bank, Issuing Bank Fees, shall be computed on the  basis of the actual number of days elapsed in a year of 360 days.  All Canadian L/C Participation  Fees shall be computed on the basis of the actual number of days elapsed in a year of 365 or  366 days, as the case may be.  All Australian L/C Participation Fees shall be computed on the basis  of the actual number of days elapsed in a year of 365 or 366 days, as the case may be.  (d) All Fees shall be paid on the dates due, in immediately available U.S. dollars  (except with respect to (i) L/C Participation Fees and Issuing Bank Fees in respect of Letters of  Credit denominated in Canadian dollars, each of which shall be payable in immediately available  Canadian dollars and (ii) L/C Participation Fees and Issuing Bank Fees in respect of Letters of  Credit denominated in Australian dollars, each of which shall be payable in immediately available  Australian dollars), to the Applicable Administrative Agent for distribution, if and as appropriate,  among the Revolving Lenders, except that the Issuing Bank Fees shall be paid directly to the  





 






  61  US-DOCS\125501258.12  Applicable Issuing Bank.  Once paid, absent manifest error, none of the Fees shall be refundable  under any circumstances.  SECTION 2.06 Interest on Loans.  (a) Subject to the provisions of Section 9.09, the  Loans comprising each ABR Borrowing shall bear interest (computed on the basis of the actual  number of days elapsed over a year of 365 or 366 days, as the case may be, when the Alternate  Base Rate is determined by reference to the Prime Rate and over a year of 360 days at all other  times and calculated from and including the date of such Borrowing to but excluding the date of  repayment thereof) at a rate per annum equal to the Alternate Base Rate plus the Applicable  Percentage in respect of ABR Loans in effect from time to time.  (b) Subject to the provisions of Section 9.09, the Loans comprising each  Eurocurrency Borrowing shall bear interest (computed on the basis of the actual number of days  elapsed over a year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for the  Interest Period in effect for such Borrowing plus the Applicable Percentage in respect of  Eurocurrency Loans in effect from time to time.  (c) Subject to the provisions of Section 9.09, the Loans comprising each  Canadian Prime Rate Borrowing shall bear interest (computed on the basis of the actual number  of days elapsed over a year of 365 or 366 days, as the case may be, and calculated from and  including the date of such Borrowing to but excluding the date of repayment thereof) at a rate per  annum equal to the Canadian Prime Rate plus the Applicable Percentage in respect of the Canadian  Prime Rate Loans in effect from time to time.  (d) Subject to the provisions of Section 9.09, the Loans comprising each B/A  Borrowing shall be subject to an Acceptance Fee, payable by the Parent Borrower on the date of  acceptance of the relevant B/A and calculated as set forth in the definition of the term “Acceptance  Fee” in Section 1.01.    (e) Subject to the provisions of Section 9.09, the Loans comprising each U.S.  Base Rate Borrowing shall bear interest (computed on the basis of the actual number of days  elapsed over a year of 365 or 366 days, as the case may be, and calculated from and including the  date of such Borrowing to but excluding the date of repayment thereof) at a rate per annum equal  to the U.S. Base Rate plus the Applicable Percentage in respect of U.S. Base Rate Loans in effect  from time to time.  (f) Subject to the provisions of Section 9.09, the Loans comprising each BBSY  Rate Borrowing shall bear interest (computed on the basis of the actual number of days elapsed  over a year of 365 or 366 days, as the case may be, and calculated from and including the date of  such Borrowing to but excluding the date of repayment thereof) at a rate per annum equal to the  BBSY Rate plus the Applicable Percentage in respect of BBSY Rate Loans in effect from time to  time.  (g) Subject to the provisions of Section 9.09, each U.S. Swing Line Loan shall  bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or  366 days, as the case may be, when the Alternate Base Rate is determined by reference to the  Prime Rate and over a year of 360 days at all other times and calculated from and including the  





 






  62  US-DOCS\125501258.12  date of such Borrowing to but excluding the date of repayment thereof) at a rate per annum equal  to the Alternate Base Rate plus the Applicable Percentage in respect of ABR Loans in effect from  time to time.  (h) Subject to the provisions of Section 9.09, each Canadian Swing Line Loan  shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365  or 366 days, as the case may be, when the Alternate Base Rate is determined by reference to the  Prime Rate and over a year of 360 days at all other times and calculated from and including the  date of such Borrowing to but excluding the date of repayment thereof) at a rate per annum equal  to (i) if such Canadian Swing Line Loan is denominated in Canadian dollars, the Canadian Prime  Rate plus the Applicable Percentage in respect of the Canadian Prime Rate Loans in effect from  time to time and (ii) if such Canadian Swing Line Loan is denominated in U.S. dollars, the  U.S. Base Rate plus the Applicable Percentage in respect of U.S. Base Rate Loans in effect from  time to time.  (i) Interest on each Loan shall be payable to the Applicable Administrative  Agent on the Interest Payment Dates applicable to such Loan except as otherwise provided in this  Agreement.  The applicable Alternate Base Rate, Adjusted LIBO Rate, BBSY Rate, Canadian  Prime Rate, U.S. Base Rate, B/A Discount Rate, and Acceptance Fee shall be determined by the  Applicable Administrative Agent, and such determination shall be conclusive absent manifest  error.  (j) For the purposes of the Interest Act (Canada) and disclosure thereunder,  whenever any interest or fee to be paid hereunder or in connection herewith is to be calculated on  the basis of any period of time that is less than a calendar year, the yearly rate of interest to which  the rate used in such calculation is equivalent is the rate so used multiplied by the actual number  of days in the calendar year in which the same is to be ascertained and divided by 360, 365 or 366,  as applicable.  The rates of interest under this Agreement are nominal rates, and not effective rates  or yields.  The principle of deemed reinvestment of interest does not apply to any interest  calculation under this Agreement.  Each Borrower confirms that it fully understands and is able to  calculate the rate of interest applicable to the Facilities based on the methodology for calculating  per annum rates provided for in this Agreement.  Each Agent agrees that, if requested in writing  by any Borrower, it will calculate the nominal and effective per annum rate of interest on any Loan  outstanding at the time of such request and provide such information to such Borrower within a  reasonable time following such request; provided that any error in any such calculation, or any  failure to provide such information on request, shall not relieve any Borrower of any of its  obligations under this Agreement or any other Loan Document, nor result in any liability to any  Agent or any Lender.  Each Borrower hereby irrevocably agrees not to plead or assert, whether by  way of defense or otherwise, in any proceeding relating to the Loan Documents, that the interest  payable under this Agreement and the calculation thereof has not been adequately disclosed to any  Borrower, whether pursuant to section 4 of the Interest Act (Canada) or any other applicable law  or legal principle.  SECTION 2.07 Default Interest.  If a Borrower shall default in the payment of the  principal of or interest on any Loan or any other amount becoming due hereunder, by acceleration  or otherwise, or under any other Loan Document, such Borrower shall on demand from time to  time pay interest, to the extent permitted by law, on such defaulted amount to but excluding the  





 






  63  US-DOCS\125501258.12  date of actual payment (after as well as before judgment) (a) in the case of overdue principal, at  the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum (subject  to Section 9.09) and (b) in all other cases, at a rate per annum (computed on the basis of the actual  number of days elapsed (i) over a year of 365 or 366 days, as the case may be, when determined  by reference to the Prime Rate or the Canadian Prime Rate, (ii) over a year of 365 days when  determined by reference to the BBSY Rate, and (iii) over a year of 360 days at all other times)  equal to the rate that would be applicable to an ABR Loan (or a Canadian Prime Rate Loan, in the  case of the Parent Borrower, or a BBSY Rate Loan, in the case of the Australian Borrower) plus  2.00% (subject to Section 9.09).  SECTION 2.08 Alternate Rate of Interest.  (a) In the event, and on each occasion, that  (i) on the day two Business Days prior to the commencement of any Interest Period for a  Eurocurrency Borrowing the Applicable Administrative Agent is unable to determine the Adjusted  LIBO Rate for Eurocurrency Loans comprising any requested Borrowing, or (ii) if the Applicable  Required Lenders shall, by 11:00 a.m. (Standard Time) at least one (1) Business Day before the  date of any requested Borrowing, notify the Applicable Administrative Agent that the Adjusted  LIBO Rate for Eurocurrency Loans comprising such Borrowing will not adequately and fairly  reflect the cost to any Lender of making or maintaining its Eurocurrency Loan, during such Interest  Period, then the Applicable Administrative Agent shall, as soon as practicable thereafter, give  written, fax or electronic communication (e-mail) (or telephone notice promptly confirmed by a  written, fax or electronic communication (e-mail)) notice of such determination to each Applicable  Borrower and each Applicable Lender.  In the event of any such determination, until the Applicable  Administrative Agent shall have advised the Applicable Borrowers and the Applicable Lenders  that the circumstances giving rise to such notice no longer exist, any request by such Borrower for  a Eurocurrency Borrowing (other than a Eurocurrency Borrowing under the Australian Revolving  Credit Facility) pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an ABR  Borrowing (or, in the case of a request by the Parent Borrower, a U.S. Base Rate Borrowing).   Each determination by the Administrative Agent hereunder shall be conclusive absent manifest  error.  (b) Notwithstanding the foregoing, if the Applicable Administrative Agent (i)  determines that the circumstances described in clause (a)(i) of this Section 2.08 have arisen and  such circumstances are unlikely to be temporary, (ii) determines that the circumstances described  in clause (a)(i) of this Section 2.08 have not arisen but the supervisor for the administrator of the  LIBO Rate or a Governmental Authority having jurisdiction over the Applicable Administrative  Agent has made a public statement identifying a specific date after which the LIBO Rate shall no  longer be used for determining interest rates for loans, (iii) is advised by the Applicable Required  Lenders of their determination in accordance with clause (a)(ii) of this Section 2.08, or (iv) new  syndicated loans have started to adopt a new benchmark interest rate, then the Applicable  Administrative Agent and the Applicable Borrower shall endeavor to establish an alternate rate of  interest to the LIBO Rate that gives due consideration to the then prevailing market convention for  determining a rate of interest for syndicated loans in the United States at such time, and shall enter  into an amendment to this Agreement to reflect such alternate rate of interest and such other related  changes to this Agreement as may be applicable, provided that to the extent that the Applicable  Administrative Agent determines that adoption of any portion of such market convention is not  administratively feasible or that no market convention for the administration of such alternate rate  of interest exists, the Applicable Administrative Agent shall administer such alternate rate of  





 






  64  US-DOCS\125501258.12  interest in a manner acceptable by the Applicable Administrative Agent and the Borrower.   Notwithstanding anything to the contrary in Section 9.08, such amendment shall become effective  without any further action or consent of any other party to this Agreement so long as the Applicable  Administrative Agent shall not have received, within five (5) Business Days of the date notice of  such alternate rate of interest is provided to the Applicable Lenders, a written notice from the  Applicable Required Lenders stating that such Applicable Required Lenders object to such  amendment.  If a notice of an alternate rate of interest has been given and no such alternate rate of  interest has been determined, and (x) the circumstances under clause (i) or (iii) above exist or (y)  the specific date referred to in clause (ii) has occurred (as applicable), Alternate Base Rate shall  apply without regard to clause (c) of the definition thereof.  Provided that, if such alternate rate of  interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this  Agreement.  (c) CDOR Discontinuation.  (i) If the Applicable Administrative Agent determines (which  determination shall be conclusive absent manifest error), or the Applicable Borrower or the  Required Lenders notify the Applicable Administrative Agent that the Applicable  Borrower or Required Lenders (as applicable) have determined that:  (A) adequate and reasonable means do not exist for ascertaining  CDOR, including because the “Refinitiv Screen Canadian Dollar Offered Rate  (CDOR) Page is not available or published on a current basis for the applicable  period and such circumstances are unlikely to be temporary, (2) there no longer  exists an active market for Bankers’ Acceptances or (3) the B/A Discount Rate will  not or does not accurately reflect the costs of funds of the Required Lenders;  (B) the administrator of the CDOR or a Governmental Authority having  jurisdiction has made a public statement identifying a specific date after which  CDOR will permanently or indefinitely cease to be made available or permitted to  be used for determining the interest rate of loans;  (C) a Governmental Authority having jurisdiction over the Applicable  Administrative Agent has made a public statement identifying a specific date after  which CDOR shall no longer be permitted to be used for determining the interest  rate of loans (each such specific date in clause (B) above and in this clause (C) a  “CDOR Scheduled Unavailability Date”); or  (D) syndicated loans currently being executed, or that include  language similar to that contained in this Section 2.08(c), are being executed or  amended (as applicable) to incorporate or adopt a new benchmark interest rate to  replace CDOR,  then reasonably promptly after such determination by the Applicable Administrative Agent or  receipt by the Applicable Administrative Agent of such notice, as applicable, the Applicable  Administrative Agent and the Applicable Borrower may mutually agree upon a successor rate to  CDOR, and the Applicable Administrative Agent and the Applicable Borrower may amend this  





 






  65  US-DOCS\125501258.12  Agreement to replace CDOR 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 Canadian Dollars denominated syndicated credit  facilities for such alternative benchmarks (any such proposed rate, a “CDOR Successor Rate”),  together with any proposed CDOR Successor Rate conforming changes and any such amendment  shall become effective at 5:00 p.m. (Toronto time) on the fifth Business Day after the Applicable  Administrative Agent shall have posted such proposed amendment to all Lenders and the  Applicable Borrower unless, prior to such time, Lenders comprising the Required Lenders have  delivered to the Applicable Administrative Agent written notice that such Required Lenders do  not accept such amendment.    (ii) If no CDOR Successor Rate has been determined and the  circumstances under clause 2.08(c)(i)(A) above exist or a CDOR Scheduled Unavailability  Date has occurred (as applicable), the Applicable Administrative Agent will promptly so  notify the Applicable Borrower and each Lender. Thereafter, the obligation of the Lenders  to make or maintain Bankers’ Acceptances and B/A Equivalent Loans, shall be suspended  (to the extent of the affected Bankers’ Acceptances, B/A Equivalent Loans, or applicable  periods). Upon receipt of such notice, the Applicable Borrower may revoke any pending  request for an advance of, conversion to or rollover of Bankers’ Acceptances or B/A  Equivalent Loans, (to the extent of the affected Bankers’ Acceptances, B/A Equivalent  Loans, or applicable periods) or, failing that, will be deemed to have converted such request  into a request for an advance of Prime Rate advances (subject to the foregoing clause (ii))  in the amount specified therein.    (iii)  Notwithstanding anything else herein, any definition of the  CDOR Successor Rate (exclusive of any margin) shall provide that in no event shall such  CDOR Successor Rate be less than zero for the purposes of this Agreement. In addition,  CDOR shall not be included or referenced in the definition of Prime Rate.  SECTION 2.09 Termination and Reduction of Commitments.  (a) The Revolving  Commitments and the L/C Commitments shall automatically terminate on the Maturity Date.  (b) The Canadian Term Commitments shall automatically terminate on the  Closing Date immediately following the making of the Canadian Term Loan on such date.  (c) Upon at least three Business Days’ prior irrevocable written, fax or  electronic communication (e-mail) (or by telephone notice promptly confirmed by a written, fax  or electronic communication (e-mail)) notice to the Applicable Administrative Agent, the U.S.  Borrower, the Parent Borrower or the Australian Borrower, as the case may be, may at any time  in whole permanently terminate, or from time to time in part permanently reduce, any Class of  Commitments; provided, however, that each partial reduction of any Class of Commitments shall  be in an integral multiple of U.S.$1,000,000.  (d) Each voluntary reduction in any Class of Commitments hereunder shall be  made ratably among the Lenders in accordance with their respective Commitments of such Class.   The Applicable Borrower shall pay to the Applicable Administrative Agent for the account of the  





 






  66  US-DOCS\125501258.12  Applicable Lenders, on the date of each termination or reduction, the Commitment Fees on the  amount of the Commitments so terminated or reduced accrued to but excluding the date of such  termination or reduction.  SECTION 2.10 Conversion and Continuation of Borrowings.  The Borrowers shall  have the right at any time upon prior irrevocable notice to the Applicable Administrative Agent  (a) not later than 1:00 p.m. (Standard Time) one Business Day before the proposed conversion, to  convert any Eurocurrency Borrowing under a Class of U.S. Revolving Commitments into an ABR  Borrowing under the same Class of U.S. Revolving Commitments, (b) not later than 1:00 p.m.  (Standard Time) one Business Day before the proposed conversion, to convert any B/A Borrowing  under one Canadian Facility into a Canadian Prime Rate Borrowing under the same Canadian  Facility, (c) not later than 1:00 p.m. (Standard Time) three Business Days prior to conversion or  continuation, to convert any ABR Borrowing under a Class of U.S. Revolving Commitments or  U.S. Base Rate Borrowing under a Class of Canadian Revolving Commitments into a  Eurocurrency Borrowing under the same Class of Commitments or to continue any Eurocurrency  Borrowing under a Class of U.S. Revolving Commitments or Canadian Revolving Commitments  as a Eurocurrency Borrowing under the same Class of Commitments for an additional Interest  Period, (d) not later than 3:00 p.m. (Sydney time) three Business Days prior to continuation, to  continue any Eurocurrency Borrowing under the Australian Revolving Commitments as a  Eurocurrency Borrowing under the Australian Revolving Commitments for an additional Interest  Period, (e) not later than 1:00 p.m. (Standard Time) three Business Days prior to conversion, to  convert the Interest Period with respect to any Eurocurrency Borrowing under a Class of U.S.  Revolving Commitments or Canadian Revolving Commitments to another permissible Interest  Period, (f) not later than 3:00 p.m. (Sydney time) three Business Days prior to conversion, to  convert the Interest Period with respect to any BBSY Rate Borrowing under the Australian  Revolving Commitments to another permissible Interest Period and (g) not later than 1:00 p.m.  (Standard Time) three Business Days prior to conversion or continuation, to convert any Canadian  Prime Rate Borrowing under a Canadian Facility to a B/A Borrowing under the same Canadian  Facility or to continue any B/A Borrowing under a Canadian Facility as a B/A Borrowing under  the same Canadian Facility for an additional Contract Period; provided, that with respect to this  clause (g), such notice may be given one Business Day prior to conversion with respect to any  Canadian Prime Rate Borrowing under a Canadian Facility outstanding as of the Closing Date to  a B/A Borrowing under the same Canadian Facility, subject in each case to the following:  (i) each conversion or continuation shall be made pro rata among the  Applicable Lenders in accordance with the respective principal amounts of the Loans  comprising the converted or continued Borrowing;  (ii) if less than all the outstanding principal amount of any Borrowing  shall be converted or continued, then each resulting Borrowing shall satisfy the limitations  specified in Sections 2.02(a) and 2.02(b) and, if applicable, Section 2.22, regarding the  principal amount and maximum number of Borrowings of the relevant Type;  (iii) each conversion shall be effected by each Applicable Lender and the  Applicable Administrative Agent by recording for the account of such Lender the new  Type and/or Interest Period or Contract Period for such Borrowing resulting from such  conversion; accrued interest on any Eurocurrency Loan or BBSY Rate Loan (or, in each  





 






  67  US-DOCS\125501258.12  case, any portion thereof) being converted shall be paid by the Applicable Borrower at the  time of conversion;  (iv) if any Eurocurrency Borrowing, BBSY Rate Borrowing or B/A  Borrowing is converted at a time other than the end of the Interest Period or Contract Period  applicable thereto, the Applicable Borrower shall pay, upon demand, any amounts due to  the Applicable Lenders pursuant to Section 2.15;  (v) any portion of a Borrowing maturing or required to be repaid in less  than one month may not be converted into or continued as a Eurocurrency Borrowing, a  BBSY Rate Borrowing or a B/A Borrowing;  (vi) any portion of a Eurocurrency Borrowing (other than a  Eurocurrency Borrowing under the Australian Revolving Credit Facility) or a B/A  Borrowing that cannot be converted into or continued as a Eurocurrency Borrowing or a  B/A Borrowing by reason of the immediately preceding clause shall be automatically  converted at the end of the Interest Period or Contract Period in effect for such Borrowing  into an ABR Borrowing, a U.S. Base Rate Borrowing or a Canadian Prime Rate  Borrowing, as the case may be;   (vii) upon notice to each Applicable Borrower from the Applicable  Administrative Agent given at the request of the Applicable Required Lenders after the  occurrence and during the continuance of a Default or Event of Default, no outstanding  Loan owing to such Lenders may be converted into, or continued as, a Eurocurrency Loan,  a BBSY Rate Loan or a B/A Loan, as applicable; and  (viii) notwithstanding anything to the contrary herein, a Swing Line Loan  may not be converted to a Eurocurrency Loan.  Each notice pursuant to this Section 2.10 shall be irrevocable, shall be hand delivered,  faxed or sent by electronic communication (e-mail) (or by telephone notice promptly confirmed  by a written, fax or electronic communication (e-mail)) and shall refer to this Agreement and  specify (i) the identity and amount of the Borrowing that the Applicable Borrower requests be  converted or continued, (ii) whether such Borrowing is to be converted to or continued as a  Eurocurrency Borrowing, an ABR Borrowing, a B/A Borrowing, a U.S. Base Rate Borrowing, a  Canadian Prime Rate Borrowing or a BBSY Rate Borrowing, (iii) if such notice requests a  conversion, the date of such conversion (which shall be a Business Day) and (iv) if such Borrowing  is to be converted to or continued as a Eurocurrency Borrowing, a BBSY Rate Borrowing or a B/A  Borrowing, the Interest Period or Contract Period with respect thereto.  If no Interest Period or  Contract Period is specified in any such notice with respect to any conversion to or continuation  as a Eurocurrency Borrowing, a BBSY Rate Borrowing or a B/A Borrowing, the Applicable  Borrower shall be deemed to have selected an Interest Period or Contract Period of one month’s  or 30 days’, as the case may be, duration.  The Applicable Administrative Agent shall promptly  advise the Applicable Lenders of any notice given pursuant to this Section 2.10 and of each  Lender’s portion of any converted or continued Borrowing.  If a Borrower shall not have given  notice in accordance with this Section 2.10 to continue any Eurocurrency Borrowing (other than a  Eurocurrency Borrowing under the Australian Revolving Credit Facility) or B/A Borrowing into  





 






  68  US-DOCS\125501258.12  a subsequent Interest Period or Contract Period (and shall not otherwise have given notice in  accordance with this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of  the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically  be converted into an ABR Borrowing, a U.S. Base Rate Borrowing or a Canadian Prime Rate  Borrowing, as applicable.  SECTION 2.11 Optional Prepayment.  (a) Each Borrower shall have the right at any  time and from time to time to prepay any Borrowing (other than Bankers’ Acceptances or B/A  Equivalent Loans, which may, however, be defeased as provided below), in whole or in part, upon  written, fax or electronic communication (e-mail) (or by telephone notice promptly confirmed by  written, fax or electronic communication (e-mail)), substantially in the form of Exhibit B-5,  delivered to the Applicable Administrative Agent by (i) 1:00 p.m. (Standard Time) at least three  Business Days prior to the date designated for such prepayment, in the case of any prepayment of  a Eurocurrency Borrowing or a BBSY Rate Borrowing, (ii) 1:00 p.m. (Standard Time) on the date  designated for such prepayment in the case of any prepayment of an ABR Borrowing under the  U.S. Revolving Commitments, or (iii) 1:00 p.m. (Standard Time) one Business Day prior to the  date designated for such prepayment, in the case of a U.S. Base Rate Borrowing or a Canadian  Prime Rate Borrowing under the Canadian Revolving Commitments or Canadian Term Loans;  provided, however, that each partial prepayment shall be in an amount that is a minimum amount  of U.S.$500,000 or an integral multiple of U.S.$100,000 in excess thereof (or C$500,000 and  C$100,000, respectively, in the case of Borrowings denominated in Canadian dollars or  AUD$500,000 and AUD$100,000, respectively, in the case of Borrowings denominated in  Australian dollars); and provided further that the Applicable Borrower may defease any BBSY  Rate Loan, B/A or B/A Equivalent Loan by depositing with the Applicable Administrative Agent  an amount that, together with interest accruing on such amount to the end of the Contract Period  for such BBSY Rate Loan, B/A or B/A Equivalent Loan, is sufficient to pay such maturing BBSY  Rate Loans, Bankers’ Acceptances or B/A Equivalent Loans when due.  Such deposited cash  collateral shall be assigned to the Applicable Administrative Agent as security for the obligations  of the Parent Borrower in relation to such BBSY Rate Loan, B/As or B/A Equivalent Loans and  the Lien of the Applicable Administrative Agent thereby created therein shall rank in priority to  all other Liens and adverse claims against deposited cash collateral.  The Applicable  Administrative Agent shall promptly advise the Applicable Lenders of any notice given pursuant  to this Section 2.11 and of each Lender’s portion of such prepayment.  (b) The U.S. Borrower may, upon notice to the U.S. Swing Line Lender (with  a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay U.S.  Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice  must be received by the U.S. Swing Line Lender and the Administrative Agent not later than 1:00  p.m. (Standard Time) on the date of the prepayment, and (B) any such prepayment shall be in a  minimum principal amount of $100,000.    (c) The Parent Borrower may, upon notice to the Canadian Swing Line Lender  (with a copy to the Canadian Administrative Agent), at any time or from time to time, voluntarily  prepay Canadian Swing Line Loans in whole or in part without premium or penalty; provided that  (A) such notice must be received by the Canadian Swing Line Lender and the Canadian  Administrative Agent not later than 1:00 p.m. (Standard Time) on the date of the prepayment, and  (B) any such prepayment shall be in a minimum principal amount of $100,000.    





 






  69  US-DOCS\125501258.12  (d) Each notice of prepayment shall specify (i) the amount to be prepaid, (ii) the  prepayment date and (iii) the Class and Type of Loans to be repaid and shall commit the Applicable  Borrower to prepay such obligations by the amount specified therein on the date specified therein.   All prepayments pursuant to this Section 2.11 shall be subject to Section 2.15, but shall otherwise  be without premium or penalty. Each prepayment of outstanding Canadian Term Loans, pursuant  to this Section 2.11 shall be applied to the principal repayment installments thereof in direct order  of maturity.  SECTION 2.12 Mandatory Prepayments.  (a) In the event of any termination of all the  U.S. Revolving Commitments, Canadian Revolving Commitments or Australian Revolving  Commitments, each Applicable Borrower shall, on the date of such termination, repay or prepay  all its outstanding U.S. Revolving Credit Loans, Canadian Revolving Credit Loans or Australian  Revolving Credit Loans, as applicable, and replace all outstanding U.S. Letters of Credit, Canadian  Letters of Credit or Australian Letters of Credit, as applicable, and/or deposit an amount equal to  the sum of the U.S. L/C Exposure, the Canadian L/C Exposure or the Australian L/C Exposure, as  applicable, in cash in a cash collateral account established with the Applicable Collateral Agent  for the benefit of the Secured Parties. In the event of any partial reduction of the U.S. Revolving  Commitments, the Canadian Revolving Commitments or the Australian Revolving Commitments,  then (i) at or prior to the effective date of such reduction, the Applicable Administrative Agent  shall notify each of the Applicable Borrowers and Applicable Lenders of the aggregate U.S.  Revolving Credit Exposure, the aggregate Canadian Revolving Credit Exposure or the aggregate  Australian Revolving Credit Exposure, as the case may be, after giving effect thereto, and (ii) if  the aggregate U.S. Revolving Credit Exposure, the aggregate Canadian Revolving Credit Exposure  or the Australian Revolving Credit Exposure, as the case may be, would exceed the Total U.S.  Revolving Commitment, Total Canadian Revolving Commitment or Total Australian Revolving  Commitment, respectively, after giving effect to such reduction, then the U.S. Borrower, the Parent  Borrower, or the Australian Borrower, as the case may be, shall, on the date of such reduction,  repay or prepay Borrowings of Revolving Credit Loans (or defease BBSY Rate Borrowings or  B/A Borrowings as described in Section 2.11(a)) and/or replace or cash collateralize outstanding  Letters of Credit in an amount sufficient to eliminate such excess.  If on any date, the aggregate  U.S. Revolving Credit Exposure exceeds the Total U.S. Revolving Commitment, then within two  Business Days following such date, the U.S. Borrower shall repay or prepay U.S. Revolving  Borrowings and/or replace or cash collateralize outstanding U.S. Letters of Credit in an amount  sufficient to eliminate such excess.  If on any date, the aggregate Canadian Revolving Credit  Exposure exceeds the Total Canadian Revolving Commitment, then within two Business Days  following such date, the Parent Borrower shall repay or prepay Canadian Revolving Borrowings  (or defease B/A Borrowings as described in Section 2.11(a)) and/or replace or cash collateralize  outstanding Canadian Letters of Credit in an amount sufficient to eliminate such excess.  If on any  date, the aggregate Australian Revolving Credit Exposure exceeds the Total Australian Revolving  Commitment, then within two Business Days following such date, the Australian Borrower shall  repay or prepay Australian Revolving Borrowings (or defease BBSY Rate Borrowings as  described in Section 2.11(a)) and/or replace or cash collateralize outstanding Australian Letters of  Credit in an amount sufficient to eliminate such excess.  (b) If on any date the Parent Borrower or any of its Subsidiaries shall receive  Net Cash Proceeds from any Asset Sale and the aggregate amount of all such Net Cash Proceeds  received since the later of the Closing Date and the date on which the last prepayment under this  





 






  70  US-DOCS\125501258.12  Section 2.12(b) was made exceeds C$5,000,000, the Canadian Term Loans shall be prepaid on or  before the date which is not more than five (5) Business Days following the date of receipt of such  Net Cash Proceeds by an amount equal to 100% of the amount of such Net Cash Proceeds;  provided that no prepayment shall be required under this Section 2.12(b) to the extent that, if no  Event of Default has occurred and is then continuing, the Parent Borrower delivers a certificate to  the Administrative Agent prior to the date of any such required prepayment stating that the Parent  Borrower or such Subsidiary intends to reinvest such Net Cash Proceeds in assets used or useful  in the business of the Parent Borrower and its Subsidiaries within twelve months after receipt of  such Net Cash Proceeds by the Parent Borrower or such Subsidiary; provided, further, however,  that any Net Cash Proceeds not so reinvested within such twelve month period shall be  immediately applied to the prepayment of the Canadian Term Loans as set forth in this  Section 2.12(b).  (c) If on any date the Parent Borrower or any of its Subsidiaries shall receive  Net Cash Proceeds from the issuance or incurrence of Indebtedness for borrowed money (other  than any cash proceeds from the issuance of Indebtedness permitted pursuant to Section 6.01 (other  than Section 6.01(e) excluding any Permitted Refinancing Indebtedness in respect of previously  incurred Indebtedness pursuant to Section 6.01(e)), the Canadian Term Loans shall be prepaid,  substantially simultaneously with (and in any event not later than the third Business Day next  following) the date of receipt of such Net Cash Proceeds by an amount equal to 100% of the  amount of such Net Cash Proceeds.  (d) If, (i) at any time there are any Canadian Revolving Credit Loans or U.S.  Revolving Credit Loans then outstanding, Excess Cash on deposit in Canada and the United States  exceeds $15,000,000 for a period of more than five consecutive Business Days, the Borrowers  shall make mandatory prepayments of Canadian Revolving Credit Loans and U.S. Revolving  Credit Loans (or, in respect of Bankers’ Acceptances, defease such Bankers’ Acceptances in  accordance with the procedures set forth in Section 2.11(a)) in an amount equal to the lesser of (A)  an amount sufficient to reduce the aggregate amount of Excess Cash on deposit in Canada and the  United States after such prepayment to below $15,000,000 or (B) an amount sufficient to repay all  Canadian Revolving Credit Loans and U.S. Revolving Credit Loans outstanding hereunder, in  each case, such prepayment shall be made within five Business Days or (ii) at any time there are  Australian Revolving Credit Loans then outstanding, Excess Cash on deposit in Australia exceeds  AUS$15,000,000 for a period of more than five consecutive Business Days, the Australian  Borrower shall make mandatory prepayments of Australian Revolving Credit Loans (or, in respect  of BBSY Rate Loans, defease such BBSY Rate Loans in accordance with the procedures set forth  in Section 2.11(a)) in an amount equal to the lesser of (A) an amount sufficient to reduce the  aggregate amount of Excess Cash on deposit in Australia after such prepayment to below  $15,000,000 or (B) an amount sufficient to repay all Australian Revolving Credit Loans  outstanding hereunder, in each case, such prepayment shall be made within five Business Days.  SECTION 2.13 Increased Costs; Capital Requirements.  (a)  Notwithstanding any  other provision of this Agreement, if any Change in Law shall (i) impose, modify or deem  applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement  against assets of, deposits with or for the account of or credit extended or participated in by any  Lender or Issuing Bank (except any such reserve requirement which is reflected in the Adjusted  LIBO Rate, the B/A Discount Rate or the BBSY Rate), (ii) subject any Lender or any Issuing Bank  





 






  71  US-DOCS\125501258.12  to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (h) 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 Issuing Bank or the London interbank  market or other relevant interbank market, any other condition, cost or expense (other than Taxes)  affecting this Agreement or Eurocurrency Loans, B/A Loans or BBSY 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 or Issuing Bank of making or maintaining any Eurocurrency  Loan, B/A Loan or BBSY Rate Loan (or of maintaining its obligation to make any such Loan) or  increase the cost to any Lender or Issuing Bank of issuing or maintaining any Letter of Credit or  purchasing or maintaining a participation therein or to reduce the amount of any sum received or  receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise),  in each case, by an amount deemed by such Lender or Issuing Bank (acting reasonably) to be  material, then, the Applicable Borrower will pay to such Lender or Issuing Bank, as the case may  be, upon demand in accordance with paragraph (c) below such additional amount or amounts as  will compensate such Lender or Issuing Bank, as the case may be, for such additional costs  incurred or reduction suffered.  (b) If any Lender or Issuing Bank (acting reasonably) shall have determined  that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender  or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity  requirements has or would have the effect of reducing the rate of return on such Lender’s or Issuing  Bank’s capital or on the capital of such Lender’s or Issuing Bank’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 Swing Line Loans held by, such Lender pursuant hereto, or  the Letters of Credit issued by such Issuing Bank pursuant hereto, to a level below that which such  Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved  but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies  and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital  adequacy and liquidity) by an amount deemed by such Lender or Issuing Bank (acting reasonably)  to be material, then from time to time in accordance with paragraph (c) below the Applicable  Borrower shall pay to such Lender or Issuing Bank, as the case may be, such additional amount or  amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s  holding company for any such reduction suffered.  (c) A certificate of a Lender or Issuing Bank setting forth the amount or  amounts necessary to compensate such Lender or Issuing Bank or its holding company, as  applicable, as specified in paragraph (a) or (b) above shall be delivered to the Applicable Borrower  and shall be conclusive absent manifest error.  The Applicable Borrower shall pay such Lender or  the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 days  after its receipt of the same.  (d) Failure or delay on the part of any Lender or Issuing Bank to demand  compensation for any increased costs or reduction in amounts received or receivable or reduction  in return on capital shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand  such compensation; provided that the Borrowers shall not be under any obligation to compensate  any Lender or Issuing Bank under paragraph (a) or (b) above with respect to increased costs or  





 






  72  US-DOCS\125501258.12  reductions with respect to any period prior to the date that is 120 days prior to such request if such  Lender or Issuing Bank knew or could reasonably have been expected to know of the  circumstances giving rise to such increased costs or reductions and of the fact that such  circumstances would result in a claim for increased compensation by reason of such increased  costs or reductions; provided further that the foregoing limitation shall not apply to any increased  costs or reductions arising out of the retroactive application of any Change in Law within such 120  day period.  The protection of this Section shall be available to each Lender and Issuing Bank  regardless of any possible contention of the invalidity or inapplicability of the Change in Law that  shall have occurred or been imposed.  SECTION 2.14 Change in Legality.  (a) Notwithstanding any other provision of this  Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any  Eurocurrency Loan (other than any Eurocurrency Loan under the Australian Revolving Credit  Facility) or to give effect to its obligations as contemplated hereby with respect to any  Eurocurrency Loan, then, by written notice to the Applicable Borrower and to the Applicable  Administrative Agent:  (i) such Lender may declare that Eurocurrency Loans, as the case may  be, will not thereafter (for the duration of such unlawfulness) be made by such Lender  hereunder (or be continued for additional Interest Periods and ABR Loans and U.S. Base  Rate Loans will not thereafter (for such duration) be converted into Eurocurrency Loans),  whereupon any request for a Eurocurrency Borrowing (or to convert an ABR Borrowing  to a Eurocurrency Borrowing or to continue a Eurocurrency Borrowing for an additional  Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan or a  U.S. Base Rate Loan (or a request to continue an ABR Loan or a U.S. Base Rate Loan as  such or to convert a Eurocurrency Loan into an ABR Loan or a U.S. Base Rate Loan),  unless such declaration shall be subsequently withdrawn; and  (ii) such Lender may require that all outstanding Eurocurrency Loans  made by it be converted to ABR Loans or U.S. Base Rate Loans, as the case may be, in  which event all such Eurocurrency Loans shall be automatically converted to ABR Loans  or U.S. Base Rate Loans, as the case may be, as of the effective date of such notice as  provided in paragraph (b) below.  In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and  prepayments of principal that would otherwise have been applied to repay the Eurocurrency Loans  that would have been made by such Lender or the converted Eurocurrency Loans of such Lender  shall instead be applied to repay the ABR Loans or U.S. Base Rate Loans made by such Lender in  lieu of, or resulting from the conversion of, such Eurocurrency Loans.  (b) For purposes of this Section 2.14, a notice to the Parent Borrower by any  Lender shall be effective as to each Eurocurrency Loan, as the case may be, made by such Lender,  if lawful, on the last day of the Interest Period then applicable to such Eurocurrency Loan; in all  other cases such notice shall be effective on the date of receipt by such Borrower.  SECTION 2.15 Breakage Costs.  The Borrowers hereby severally indemnify each  Lender against any loss or expense that such Lender may sustain or incur as a consequence of  





 






  73  US-DOCS\125501258.12  (a) any event, other than a default by such Lender in the performance of its obligations hereunder,  which results in (i) such Lender receiving or being deemed to receive any amount on account of  the principal of any Eurocurrency Loan or BBSY Rate Loan prior to the end of the Interest Period  in effect therefor, including, without limitation, as a result of any prepayment, the acceleration of  the maturity of the Obligations or for any other reason, (ii) the conversion of any Eurocurrency  Loan to an ABR Loan or U.S. Base Rate Loans or the conversion of the Interest Period with respect  to any Eurocurrency Loan or BBSY Rate Loan, in each case other than on the last day of the  Interest Period in effect therefor, (iii) any Eurocurrency Loan, B/A Loan or BBSY Rate Loan to  be made by such Lender (including any Eurocurrency Loan, B/A Loan or BBSY Rate Loan to be  made pursuant to a conversion or continuation under Section 2.10 or 2.22, as applicable) not being  made after notice of such Loan shall have been given by a Borrower hereunder or (iv) other than  with respect to any Defaulting Lender, any assignment of a Eurocurrency Loan or BBSY Rate  Loan is made other than on the last day of the Interest Period for such Loan as a result of a request  by the Applicable Borrower pursuant to Section 2.20 (any of the events referred to in this clause (a)  being called a “Breakage Event”) or (b) any default in the making of any payment or prepayment  required to be made hereunder.  In the case of any Breakage Event, such loss shall include an  amount equal to the excess, as reasonably determined by such Lender, of (i) its cost of obtaining  funds for the Eurocurrency Loan, B/A Loan or BBSY Rate Loan that is the subject of such  Breakage Event for the period from the date of such Breakage Event to the last day of the Interest  Period or Contract Period in effect (or that would have been in effect) for such Loan over (ii) the  amount of interest likely to be realized by such Lender in redeploying the funds released or not  utilized by reason of such Breakage Event for such period.  A certificate of any Lender setting  forth any amount or amounts which such Lender is entitled to receive pursuant to this Section 2.15  shall be delivered to the Applicable Borrower and the Applicable Administrative Agent and shall  be conclusive absent manifest error.  The Applicable Borrower shall pay such Lender the amount  shown as due on any such certificate delivered by it within 10 days after its receipt of the same.  SECTION 2.16 Pro Rata Treatment.  Except as required under Section 2.14, each  Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest  on any Class of Loans, each payment of the Commitment Fees with respect to any Class of Loans,  each reduction of the Commitments and each conversion of any Borrowing to or continuation of  any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Applicable  Lenders in accordance with their Applicable Pro Rata Percentages.  SECTION 2.17 Sharing of Setoffs.  (a) Each Canadian Lender agrees that if it shall,  through the exercise of a right of banker’s lien, setoff or counterclaim against a Borrower or any  other Loan Party, or pursuant to a secured claim or other security or interest arising from, or in lieu  of, such secured claim, received by such Canadian Lender under any applicable Insolvency Law  or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any  Canadian Loan as a result of which the unpaid portion of its Canadian Loans shall be  proportionately less than the unpaid portion of the Canadian Loans of any other Canadian Lender  of the same Class, it shall (i) notify the Applicable Administrative Agent of such fact and (ii) be  deemed simultaneously to have purchased from such other Canadian Lender at face value, and  shall promptly pay to such other Canadian Lender the purchase price for, a participation in the  Canadian Loans of the same Class of such other Canadian Lender and, if applicable,  subparticipations in Canadian L/C Exposure and Canadian Swing Line Loans of such other  Canadian Lender, or make such other adjustments as shall be equitable, so that the aggregate  





 






  74  US-DOCS\125501258.12  unpaid amount of the Canadian Loans and participations in Canadian L/C Exposure and Canadian  Swing Line Loans held by each Canadian Lender shall be in the same proportion to the aggregate  unpaid amount of all Canadian Loans, Canadian L/C Exposure and Canadian Swing Line Loans  then outstanding of the same Class as the amount of its Canadian Loans, Canadian L/C Exposure  and Canadian Swing Line Loans prior to such exercise of banker’s lien, setoff or counterclaim or  other event was to the amount of all Canadian Loans, Canadian L/C Exposure and Canadian Swing  Line Loans outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other  event; provided, however, that if any such purchase, purchases, subparticipations or adjustments  shall be made pursuant to this Section 2.17(a) and the payment giving rise thereto shall thereafter  be recovered, such purchase, purchases, subparticipations or adjustments shall be rescinded to the  extent of such recovery and the purchase price or prices or adjustment restored without interest.  (b) Each U.S. Lender agrees that if it shall, through the exercise of a right of  banker’s lien, setoff or counterclaim against a Borrower or any other Loan Party, or pursuant to a  secured claim or other security or interest arising from, or in lieu of, such secured claim, received  by such U.S. Lender under any applicable Insolvency Law or otherwise, or by any other means,  obtain payment (voluntary or involuntary) in respect of any U.S. Loan as a result of which the  unpaid portion of its U.S. Loans shall be proportionately less than the unpaid portion of the U.S.  Loans of any other U.S. Lender of the same Class, it shall (i) notify the Applicable Administrative  Agent of such fact and (ii) be deemed simultaneously to have purchased from such other U.S.  Lender at face value, and shall promptly pay to such other U.S. Lender the purchase price for, a  participation in the U.S. Loans of the same Class of such other U.S. Lenders and, if applicable,  subparticipations in the U.S. L/C Exposure and U.S. Swing Line Loans of such other U.S. Lenders,  or make such other adjustments as shall be equitable, so that the aggregate unpaid amount of the  U.S. Loans and participations in U.S. Loans, U.S. L/C Exposure and U.S. Swing Line Loans held  by each U.S. Lender shall be in the same proportion to the aggregate unpaid amount of all U.S.  Loans, U.S. L/C Exposure and U.S. Swing Line Loans then outstanding of the same Class as the  amount of its U.S. Loans, U.S. L/C Exposure and U.S. Swing Line Loans prior to such exercise of  banker’s lien, setoff or counterclaim or other event was to the amount of all U.S. Loans, U.S. L/C  Exposure and U.S. Swing Line Loans outstanding prior to such exercise of banker’s lien, setoff or  counterclaim or other event; provided, however, that if any such purchase, purchases,  subparticipations or adjustments shall be made pursuant to this Section 2.17(b) and the payment  giving rise thereto shall thereafter be recovered, such purchase, purchases, subparticipations or  adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or  adjustment restored without interest.  (c) Each Australian Lender agrees that if it shall, through the exercise of a right  of banker’s lien, setoff or counterclaim against a Borrower or any other Loan Party, or pursuant to  a secured claim or other security or interest arising from, or in lieu of, such secured claim, received  by such Australian Lender under any applicable Insolvency Law or otherwise, or by any other  means, obtain payment (voluntary or involuntary) in respect of any Australian Revolving Credit  Loan as a result of which the unpaid portion of its Australian Revolving Credit Loans shall be  proportionately less than the unpaid portion of the Australian Revolving Credit Loans of any other  Australian Lender of the same Class, it shall (i) notify the Applicable Administrative Agent of  such fact and (ii) be deemed simultaneously to have purchased from such other Australian Lender  at face value, and shall promptly pay to such other Australian Lender the purchase price for, a  participation in the Australian Revolving Credit Loans of the same Class of such other Australian  





 






  75  US-DOCS\125501258.12  Lender and, if applicable, subparticipations in Australian L/C Exposure of such other Australian  Lender, or make such other adjustments as shall be equitable, so that the aggregate unpaid amount  of the Australian Revolving Credit Loans and participations in Australian Revolving Credit Loans  and Australian L/C Exposure held by each Australian Lender shall be in the same proportion to  the aggregate unpaid amount of all Australian Revolving Credit Loans, Australian L/C Exposure  then outstanding of the same Class as the amount of its Australian Revolving Credit Loans,  Australian L/C Exposure prior to such exercise of banker’s lien, setoff or counterclaim or other  event was to the amount of all Australian Revolving Credit Loans and Australian L/C Exposure  outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided,  however, that if any such purchase, purchases, subparticipations or adjustments shall be made  pursuant to this Section 2.17(c) and the payment giving rise thereto shall thereafter be recovered,  such purchase, purchases, subparticipations or adjustments shall be rescinded to the extent of such  recovery and the purchase price or prices or adjustment restored without interest.  (d) Whenever the Bilateral Lender (in such capacity as the lender under the  Bilateral Agreement and not in its capacity as a Lender under this Agreement) receives or recovers  any money in respect of any sum due from an Australian Loan Party and applies such amounts  against the Bilateral Obligations (including recoveries by way of set off) (“Turnover Money”) and:  (i) an Event of Default has occurred and is continuing under this  Agreement and the Australian Collateral Agent has enforced its rights and remedies under  the Australian Security Documents as contemplated by Sections 7.02 or 7.03; or   (ii) if paragraph (i) above does not apply, but an Event of Default has  occurred and is continuing under this Agreement,  then:  (iii) in the case of paragraph (i) above:  (A) the Bilateral Lender will promptly notify the Australian  Collateral Agent and pay an amount equal to the Turnover Money to the Australian  Collateral Agent (unless the Australian Collateral Agent directs otherwise on the  instructions of the Applicable Required Lenders); and   (B) the Australian Collateral Agent will deal with the Turnover  Money as if it were a payment by the Australian Loan Parties under this Agreement;  and  (iv) in the case of paragraph (ii) above:  (A) the Bilateral Lender will promptly notify the Australian  Administrative Agent and pay an amount equal to the Turnover Money to the  Australian Administrative Agent (unless the Australian Administrative Agent  directs otherwise on the instructions of the Applicable Required Lenders); and   (B) the Australian Administrative Agent will hold the Turnover  Money paid to it under paragraph (A) for a period of no greater than 15  Business  





 






  76  US-DOCS\125501258.12  Days (“Decision Period”) to be applied by the Australian Administrative Agent as  follows:  (1) if prior to the end of the Decision Period, an Event of  Default occurs or has occurred and is continuing under this Agreement and  the Australian Collateral Agent enforces its rights and remedies under the  Australian Security Documents as contemplated by Section 7.02 or 7.03,  the Australian Administrative Agent will immediately pay an amount equal  to the Turnover Money to the Australian Collateral Agent on such  enforcement and the Australian Collateral Agent shall deal with the  Turnover Money as if it were a payment by the Australian Loan Parties  under this Agreement; or   (2) in all other circumstances, it will return an amount  equal to the Turnover Moneys to the Bilateral Lender for the Bilateral  Lender to apply to the Bilateral Obligations.   The parties agree that the Turnover Money recovered by the Bilateral Lender that is  ultimately distributed by the Australian Collateral Agent to the relevant Secured Parties will be  taken to have been a payment for the account of the Australian Collateral Agent and not to the  Bilateral Lender for its own account (and the liability of an Australian Loan Party to the Bilateral  Lender will only be reduced to the extent the Turnover Money is returned the Bilateral Lender as  contemplated by Section 2.17(d)(iv)(B)(2)). Without limiting this paragraph, the relevant  Australian Loan Party shall indemnify the Bilateral Lender against a recovery by the Bilateral  Lender of the Turnover Money to the extent that (despite this paragraph), the relevant Australian  Loan Party’s liability has been discharged by the recovery or payment. For the avoidance of doubt,  the Bilateral Lender’s obligations under this clause Section 2.17(d) to pay any Turnover Moneys  to the Australian Administrative Agent or Australian Collateral Agent (as the case may be), is only  enlivened when an Event of Default has occurred and is continuing.    (e) The provisions of Section 2.17(a), (b), (c) and (d) shall not be construed to  apply to (i) any payment made by a Borrower pursuant to and in accordance with the express terms  of this Agreement or (ii) any payment obtained by a Lender as consideration for the assignment of  or sale of a participation in any of its Loans or participations in L/C Exposure or Swing Line Loans  to any assignee or participant, other than to a Borrower or any Subsidiary thereof (as to which the  provisions of Section 2.17(a), (b) and (c) shall apply).  (f) Each Loan Party expressly consents to the arrangements set forth in  Section 2.17(a), (b), (c) and (d) above and agrees, to the extent it may effectively do so under  applicable law, that any Lender holding a participation in a Loan or L/C Exposure pursuant to the  foregoing arrangements may exercise against each Loan Party any and all rights of banker’s lien,  setoff or counterclaim with respect to such participation as fully as if such Lender were a direct  creditor of each Loan Party in the amount of such participation.  SECTION 2.18 Payments.  (a) The Borrowers shall make each payment (including  principal of or interest on any Borrowing or any L/C Disbursement or any Fees or other amounts)  hereunder and under any other Loan Document not later than 4:00 p.m. (Standard Time) on the  





 






  77  US-DOCS\125501258.12  date when due in immediately available U.S. dollars (or Canadian dollars, in the case of payments  relating to Commitments, Loans and Letters of Credit denominated in Canadian dollars, or  Australian dollars, in the case of payments relating to Commitments, Loans and Letters of Credit  denominated in Australian dollars), without setoff, defense or counterclaim.  Each such payment  (other than Issuing Bank Fees, which shall be paid directly to the Applicable Issuing Bank) shall  be made to the office of the Applicable Administrative Agent designated by such Applicable  Administrative Agent.  The Applicable Administrative Agent shall promptly thereafter cause to be  distributed like funds relating to the payment of principal, interest or fees ratably (other than  amounts payable solely to the Administrative Agent, the Canadian Administrative Agent, the  Australian Administrative Agent, a specific Issuing Bank, or a specific Lender pursuant to  Section 2.05, 2.08, 2.13, 2.14, 2.15, 2.19, or 9.05, but after taking into account payments effected  pursuant to Section 9.05(a)) in accordance with each Lender’s Applicable Pro Rata Percentage  thereof, to the Lenders for the account of their respective applicable lending offices, and like funds  relating to the payment of any other amount payable to any Lender or Issuing Bank to such Lender  or Issuing Bank for the account of its applicable lending office, in each case to be applied in  accordance with the terms of this Agreement.  (b) Except as otherwise expressly provided herein, whenever any payment  (including principal of or interest on any Borrowing or any Fees or other amounts) hereunder or  under any other Loan Document shall become due, or otherwise would occur, on a day that is not  a Business Day, such payment may be made on the next succeeding Business Day, and such  extension of time shall in such case be included in the computation of interest or Fees, if applicable.  SECTION 2.19 Taxes.    (a) For purposes of this Section 2.19, the term “Lender” includes any Issuing  Bank and the term “applicable law” includes FATCA.  (b) Any and all payments by or on account of any obligation of any Loan Party  hereunder or under any other Loan Document shall be made without deduction or withholding for  any Taxes, except as required by applicable law.  If any applicable law (as determined in the good  faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any  Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall  be entitled to make such deduction or withholding and shall timely pay the full amount deducted  or withheld to the relevant Governmental Authority in accordance with applicable law and, if such  Tax is an Indemnified Tax, then the sum payable by the Applicable Borrower or the applicable  Loan Party, as the case may be, shall be increased as necessary so that, after such deduction or  withholding has been made (including such deductions and withholdings applicable to additional  sums payable under this Section), the applicable Recipient receives an amount equal to the sum it  would have received had no such deduction or withholding been made.  (c) In addition, the Loan Parties shall pay any Other Taxes to the relevant  Governmental Authority in accordance with applicable law or, at the option of the Applicable  Administrative Agent, timely reimburse it for the payment of any Other Taxes.  (d) The Borrowers shall severally indemnify each Recipient, within 10 days  after written demand therefor, for the full amount of any Indemnified Taxes (including  





 






  78  US-DOCS\125501258.12  Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section)  payable or paid by such Recipient or required to be withheld or deducted from a payment to such  Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not  such Indemnified Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate as to the amount of such payment or liability delivered to  the Applicable Borrower by a Lender or an Issuing Bank (with a copy to the Applicable  Administrative Agent), or by the Applicable Administrative Agent on its behalf or on behalf of a  Lender or Issuing Bank, shall be conclusive absent manifest error.  (e) Each Lender shall severally indemnify the Applicable Administrative  Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such  Lender (but only to the extent that any Loan Party has not already indemnified the Applicable  Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan  Parties to do so), (ii) any taxes attributable to such Lender’s failure to comply with the provisions  of Section 9.04 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes  attributable to such Lender, in each case, that are payable or paid by the Applicable Administrative  Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or  with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by  the relevant Governmental Authority.  A certificate as to the amount of such payment or liability  delivered to any Lender by the Applicable Administrative Agent shall be conclusive absent  manifest error.  Each Lender hereby authorizes the Applicable Administrative Agent to set off and  apply any and all amounts at any time owing to such Lender under any Loan Document or  otherwise payable by the Applicable Administrative Agent to the Lender from any other source  against any amount due to the Applicable Administrative Agent under this paragraph (e).  (f) As soon as practicable after any payment of Indemnified Taxes or Other  Taxes by a Borrower or any other Loan Party to a Governmental Authority, the applicable Loan  Party shall deliver to the Applicable Administrative Agent the original or a certified copy of a  receipt issued by such Governmental Authority evidencing such payment, a copy of the return  reporting such payment or other evidence of such payment reasonably satisfactory to the  Applicable Administrative Agent.  (g) (i)  Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Documents shall deliver to the  Applicable Borrower (with a copy to the Applicable Administrative Agent), at the time or times  prescribed by applicable law or reasonably requested by the Applicable Borrower or the  Applicable Administrative Agent, such properly completed and executed documentation  prescribed by applicable law or reasonably requested by the Applicable Borrower or the  Applicable Administrative Agent as will permit such payments to be made without withholding or  at a reduced rate of withholding.  In addition, any Lender, if requested by the Applicable Borrower  or the Applicable Administrative Agent, shall deliver such other documentation prescribed by  applicable law or reasonably requested by the Applicable Borrower or the Applicable  Administrative Agent as will enable the Applicable Borrower or the Applicable Administrative  Agent to determine whether or not such Lender is subject to backup withholding or information  reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences,  the completion, execution and submission of such documentation (other than such documentation  set forth in Sections 2.19(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s  





 






  79  US-DOCS\125501258.12  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  Applicable Borrower with respect to such Lender is a U.S. Person:  (A) any Lender with respect to such Borrower that is a U.S.  Person shall deliver to such Borrower and the Applicable 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 such Borrower or  the Applicable Administrative Agent), executed originals of IRS Form W-9  certifying that such Lender is exempt from U.S. federal backup withholding tax;  (B) any Foreign Lender with respect to such Borrower shall  deliver to such Borrower and the Applicable 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 request of such Borrower or the Applicable Administrative  Agent), but only if such Foreign Lender is legally entitled to do so, whichever of  the following is applicable:  (1) in the case of a Foreign Lender claiming the benefits  of an income tax treaty to which the United States is a party (x) with respect  to payments of interest under any Loan Document, duly completed copies  of an applicable IRS Form W-8BEN or W-8BEN-E establishing an  exemption from, or reduction of, U.S. federal withholding Tax pursuant to  the “interest” article of such tax treaty and (y) with respect to any other  applicable payments under any Loan Document, an applicable IRS Form  W-8BEN or W-8BEN-E establishing an exemption from, or reduction of,  U.S. federal withholding Tax pursuant to the “business profits” or “other  income” article of such tax treaty,  (2) duly completed copies of IRS Form W-8ECI,  (3) in the case of a Foreign Lender claiming the benefits  of the exemption for portfolio interest under Section 881(c) of the Code, (x)  a certificate substantially in the form of the applicable Exhibit I-1 to the  effect that such Foreign Lender is not (A) a “bank” within the meaning of  Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the  Applicable Borrower within the meaning of Section 881(c)(3)(B) of the  Code, or (C) a “controlled foreign corporation” described in Section  881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y)  duly completed copies of  an applicable IRS Form W-8BEN or W-8BEN- E, or  





 






  80  US-DOCS\125501258.12  (4) to the extent a Foreign Lender is not the beneficial  owner, duly completed copies of IRS Form W-8IMY, accompanied by IRS  Form W-8ECI, an applicable IRS Form W-8BEN or W-8BEN-E, a U.S.  Tax Compliance Certificate substantially in the form of Exhibit I-2 or  Exhibit I-3, IRS Form W-9, and/or other certification documents from each  beneficial owner, as applicable; provided, that if the Foreign Lender is a  partnership and one or more direct or indirect partners of such Foreign  Lender are claiming the portfolio interest exemption, such Foreign Lender  may provide a U.S. Tax Compliance Certificate substantially in the form of  Exhibit I-4 on behalf of each such direct and indirect partner;  (C) any Lender shall, to the extent it is legally entitled to do so,  deliver to such Borrower and the Applicable Administrative Agent (in such copies  as shall be requested by the recipient) 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 such Borrower or the Applicable Administrative Agent), duly  completed copies of any other form prescribed by applicable law as a basis for  claiming exemption from or a reduction in United States Federal withholding tax  duly completed together with such supplementary documentation as may be  prescribed by applicable law to permit the Applicable Borrower or the Applicable  Administrative Agent to determine the withholding or deduction required to be  made; and  (D) If a payment made to an Agent, Lender or Issuing Bank  under any Loan Document would be subject to U.S. Federal withholding tax  imposed by FATCA if such Agent, Lender or Issuing Bank fails to comply with the  applicable reporting requirements of FATCA (including those contained in Section  1471(b) or 1472(b) of the Code, as applicable), such Agent, Lender or Issuing Bank  shall deliver to the Applicable Borrower or the Applicable Administrative Agent,  at the time or times prescribed by law and at such time or times reasonably  requested by the Applicable Borrower or the Applicable Administrative Agent,  such documentation prescribed by applicable law (including as prescribed by  Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by the Applicable Borrower or the Applicable Administrative  Agent as may be necessary for the Applicable Borrower or the Applicable  Administrative Agent to comply with its obligations under FATCA, to determine  that such Agent, Lender or Issuing Bank has complied with its obligations under  FATCA or to determine the amount to deduct and withhold from any such   payments. Solely for purposes of this paragraph (i), “FATCA” shall include any  amendments made to FATCA after the date of this Agreement.  (E) Solely for purposes of determining withholding Taxes  imposed under FATCA, the Borrowers and the Administrative Agents shall treat  (and the Lenders hereby authorize the Administrative Agents to treat) the Loans as  not qualifying as a “grandfathered obligation” within the meaning of Treasury  Regulation Section 1.1471-2(b)(2)(i).  





 






  81  US-DOCS\125501258.12  Each Lender agrees that if any form or certification it previously delivered expires or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly  notify the Parent Borrower and the Applicable Administrative Agent in writing of its legal inability  to do so.  (h) RBC, as Administrative Agent, shall deliver, on or before the date it  becomes a party to this Agreement, to the U.S. Borrower a duly completed copy of IRS Form W- 8IMY certifying that it is a “U.S. branch” of a foreign bank and that it agrees to be treated as a  U.S. Person with respect to any payments made to it by the U.S. Borrower under any Loan  Document.  RBC, as Administrative Agent agrees that if such IRS Form W-8IMY previously  delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form if it  is legally able to do so or promptly notify the Parent Borrower in writing of its legal inability to  do so (including as a result of a change in RBC’s operations).  If the Administrative Agent (i) fails  to deliver the form required by this Section 2.19(h) or is legally unable to update such form as  required by this Section 2.19(h) and (ii) fails to appoint as a sub-agent pursuant to Section 8.05  any Affiliate of the Administrative Agent that is a U.S. Person or that can deliver the form required  by this Section 2.19(h), then the Parent Borrower shall have the right to require the appointment  of an agent that is a U.S. Person solely for the purposes of receiving U.S. tax forms and  administering any required withholding for U.S. Taxes under this Section 2.19; provided that such  appointment shall not otherwise affect the rights and obligations of the Administrative Agent set  forth in this Agreement.  (i) If any party determines, in its sole discretion exercised in good faith, that it  has received a refund of any Taxes as to which it has been indemnified pursuant to this Section  2.19 (including by the payment of additional amounts pursuant to this Section 2.19), it shall pay  to the indemnifying party an amount equal to such refund (but only to the extent of indemnity  payments made under this Section with respect to the Taxes giving rise to such refund), net of all  out-of-pocket expenses (including Taxes) of such indemnified party, and without interest (other  than any interest paid by the relevant Governmental Authority with respect to such refund). Such  indemnifying party, upon the request of such indemnified party, agrees to repay to such  indemnified party the amount paid over pursuant to this paragraph (plus any penalties, interest or  other charges imposed by the relevant Governmental Authority) in the event such indemnified  party is required to repay such refund to such Governmental Authority.  Notwithstanding anything  to the contrary in this paragraph (i), in no event will the indemnified party be required to pay any  amount to an indemnifying party pursuant to this paragraph (i) the payment of which would place  the indemnified party in a less favorable net after-Tax position than the indemnified party would  have been in if the Tax subject to indemnification and giving rise to such refund had not been  deducted, withheld or otherwise imposed and the indemnification payments or additional amounts  with respect to such Tax had never been paid.  This paragraph shall not be construed to require  any Agent, Lender or Issuing Bank to make available its tax returns (or any other information  relating to its taxes that it deems confidential) to any Borrower or any other person.   (j) (i) Unless expressly stated otherwise in the relevant Loan Document,  the consideration payable for any supply made by or through a Lender or Issuing Bank under or in  connection with any Loan Document does not include Australian GST.  





 






  82  US-DOCS\125501258.12  (ii) If Australian GST is payable in respect of any supply made by or  through a Lender or Issuing Bank (a “Supplier”) under or in connection with any Loan  Document (“Australian GST Liability”) then:  (A) where consideration is provided by a party (“Recipient Party”) in  relation to that supply, the Recipient Party will pay an additional amount to the  Supplier equal to the full amount of the Australian GST Liability; and  (B) except where the foregoing clause (A) applies, the Australian  Borrower will indemnify and keep the Supplier indemnified for the full amount of  the Australian GST Liability.  However, (l) the relevant Recipient Party or the Australian Borrower, as applicable,  need not pay the additional amount on account of the Australian GST Liability to a  Supplier until that Supplier gives the Recipient Party or the Australian Borrower,  as applicable, a tax invoice complying with the relevant law relating to any payment  made to that Supplier in accordance with this Section 2.20(j)(ii) and (2) if an  adjustment event arises in respect of any supply made by or through a Lender or  Issuing Bank under or in connection with any Loan Document and (if required by  law) the Lender or Issuing Bank gives the Recipient Party or the Australian  Borrower, as applicable, a valid adjustment note, the additional amount must be  adjusted to reflect the adjustment event and the Recipient Party or the Supplier (as  the case may be) must make any payments necessary to reflect the adjustment; and  (3) this Section 2.20(j)(ii) does not apply to the extent that the Australian GST  Liability on a supply made by or through a Lender or Issuing Bank under or in  connection with any Loan Document is payable by the Recipient Party or the  Australian Borrower, as appropriate, under Division 83 or 84 of the A New Tax  System (Goods and Services Tax) Act 1999 (Cth) and the Lender or Issuing Bank  has no liability at all in relation to that payment.  (iii) Any payment or reimbursement required to be made to a Lender or  Issuing Bank under any Loan Document that is calculated by reference to a cost or other  amount paid or incurred will be limited to the total cost or other amount less the amount of  any input tax credit or other credit to which the relevant Lender or Issuing Bank (or the  representative member for a Australian GST group of which the relevant Lender or Issuing  Bank is a member) is entitled for the acquisition to which the cost or other amount relates.  (iv) Words used in this Section 2.19(j) which are not defined in this  agreement but which have a defined meaning in the GST Law have the same meaning as  in the GST Law unless the contrary intention appears.  SECTION 2.20 Assignment of Commitments Under Certain Circumstances; Duty  to Mitigate.  (a) In the event (i) any Lender or Issuing Bank delivers a certificate requesting  compensation pursuant to Section 2.13, (ii) any Lender or Issuing Bank delivers a notice described  in Section 2.14, (iii) a Borrower is required to pay any additional amount to any Lender or Issuing  Bank or any Governmental Authority on account of any Lender or Issuing Bank pursuant to  Section 2.19, (iv) any Lender becomes a Defaulting Lender or a Potential Defaulting Lender or (v)  





 






  83  US-DOCS\125501258.12  any Lender is a Non-Consenting Lender, then the Applicable Borrower may, at its sole expense  and effort (including with respect to the processing and recordation fee referred to in  Section 9.04(b)), upon notice to such Lender or Issuing Bank and the Applicable Administrative  Agent, require such Lender or Issuing Bank to transfer and assign, without recourse (in accordance  with and subject to the restrictions contained in Section 9.04), all of its interests, rights and  obligations under this Agreement to an assignee that shall assume such assigned obligations (which  assignee may be another Lender, if a Lender accepts such assignment); provided that (A) such  assignment shall not conflict with any law, rule or regulation or order of any court or other  Governmental Authority having jurisdiction, (B) the Applicable Borrower shall have received the  prior written consent of the Applicable Administrative Agent, the Applicable Issuing Banks and  the Applicable Swing Line Lender, if any, which consent shall not unreasonably be withheld or  delayed, (C) the affected Lender or Issuing Bank shall have received in immediately available  funds an amount equal to the sum of the principal of and interest accrued to the date of such  payment on the outstanding Loans and participations in L/C Disbursements of such Lender or  Issuing Bank, respectively, plus all Fees and other amounts accrued for the account of such Lender  or Issuing Bank hereunder (including any amounts under Section 2.13 and Section 2.15) from the  assignee (to the extent of such outstanding principal and accrued interest and Fees) or the  Applicable Borrower (in the case of all other amounts), (D) in the case of any such assignment  resulting from a claim for compensation under Section 2.13 or payments required to be made  pursuant to Section 2.19, such assignment is expected to result in a reduction in such compensation  or payments thereafter and (E) in the case of any such assignment resulting from a Non-Consenting  Lender, the applicable assignee shall have consented to the applicable amendment, waiver or  consent.  A Lender or Issuing Bank shall not be required to make any such assignment or  delegation if, prior thereto, as a result of a waiver by such Lender, Issuing Bank or otherwise, the  circumstances entitling such Borrower to require such assignment and delegation cease to apply.  (b) If (i) any Lender or Issuing Bank shall request compensation under  Section 2.13, (ii) any Lender or Issuing Bank delivers a notice described in Section 2.14 or (iii) a  Borrower is required to pay any additional amount to any Agent, Lender or Issuing Bank or any  Governmental Authority on account of any Agent, Lender or Issuing Bank, pursuant to  Section 2.19, then such Agent, Lender or Issuing Bank 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, such designation or assignment (A) would eliminate or reduce its claims for compensation  under Section 2.13 or enable it to withdraw its notice pursuant to Section 2.14 or would reduce  amounts payable pursuant to Section 2.19, as the case may be, in the future and (B) would not  subject such Agent, Lender or Issuing Bank to incur an unreimbursed loss or unreimbursed cost  or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory  restrictions.  Each Borrower hereby agrees to pay all reasonable costs and expenses incurred by  any Lender or Issuing Bank in connection with any such designation or assignment.  SECTION 2.21 Letters of Credit.  (a) General.  Each Borrower may request the issuance of a Letter of Credit  denominated in U.S. dollars, Canadian dollars, Australian dollars or in one or more Alternative  Currencies for its own account or for the account of any of its Subsidiaries (in which case such  Borrower and such Subsidiary shall be co-applicants with respect to such Letter of Credit), in a  





 






  84  US-DOCS\125501258.12  form reasonably acceptable to the Applicable Issuing Bank, at any time and from time to time  while the Revolving Commitments remain in effect, but no later than five Business Days prior to  the Maturity Date.  This Section shall not be construed to impose an obligation upon any Issuing  Bank to issue any Letter of Credit that is inconsistent with the terms and conditions of this  Agreement.  (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.   In order to request the issuance of a Letter of Credit denominated in U.S. dollars, Canadian dollars,  Australian dollars or an Alternative Currency (or to amend, renew or extend an existing Letter of  Credit issued in U.S. dollars, Australian dollars, Canadian dollars or an Alternative Currency), the  Applicable Borrower shall hand deliver, fax or send by electronic communication (e-mail) (or by  telephone notice promptly confirmed by a written, fax or electronic communication (e-mail)) to  the Applicable Issuing Bank and the Applicable Administrative Agent (reasonably in advance of  the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance  of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, the  date of issuance, amendment, renewal or extension (which date shall be (x) in the case of U.S.  Letters of Credit and Canadian Letters of Credit, at least two Business Days after such notice is  received by the Applicable Issuing Bank and the Applicable Administrative Agent or (y) in the  case of Australian Letters of Credit, at least three Business Days after such notice is received by  the Applicable Issuing Bank and the Australian Administrative Agent), the date on which such  Letter of Credit is to expire (which shall comply with paragraph (c) below), the amount and  currency of such Letter of Credit, whether the Letter of Credit is to be a U.S. Letter of Credit, a  Canadian Letter of Credit or an Australian Letter of Credit, the name and address of the beneficiary  thereof and such other information as shall be necessary to prepare such Letter of Credit.  In order  to request the issuance of a Letter of Credit in a currency other than those specifically listed in the  definition of “Alternative Currency”, the Applicable Borrower shall follow the procedures set forth  in Section 1.05 hereof.  A U.S. Letter of Credit shall be denominated in U.S. dollars or an  Alternative Currency and shall be issued, amended, renewed or extended only if, and upon  issuance, amendment, renewal or extension of each Letter of Credit the U.S. Borrower shall be  deemed to represent and warrant that, after giving effect to such issuance, amendment, renewal or  extension (i) the U.S. L/C Exposure shall not exceed U.S.$10,000,000, (ii) the aggregate U.S.  Revolving Credit Exposure shall not exceed the Total U.S. Revolving Commitment, and (iii) the  U.S. L/C Exposure related to U.S. Letters of Credit issued by an Issuing Bank shall not exceed an  amount agreed to in writing between the U.S. Borrower and such Issuing Bank and notified to the  Administrative Agent.  A Canadian Letter of Credit shall be denominated in Canadian dollars and  shall be issued, amended, renewed or extended only if, and upon issuance, amendment, renewal  or extension of each Canadian Letter of Credit, such Parent Borrower shall be deemed to represent  and warrant that after giving effect to such issuance, amendment, renewal or extension (i) the  Canadian L/C Exposure shall not exceed the Canadian Dollar Equivalent of U.S.$20,000,000, (ii)  the aggregate Canadian Revolving Credit Exposure shall not exceed the Total Canadian Revolving  Commitment and (iii) the portion of the Canadian L/C Exposure attributable to Letters of Credit  issued by such Applicable Issuing Bank will not, unless such Applicable Issuing Bank shall so  agree in its sole discretion, exceed the L/C Issuance Limit of such Applicable Issuing Bank.  An  Australian Letter of Credit shall be denominated in Australian dollars and shall be issued,  amended, renewed or extended only if, and upon issuance, amendment, renewal or extension of  each Australian Letter of Credit, such Australian Borrower shall be deemed to represent and  warrant that after giving effect to such issuance, amendment, renewal or extension (i) the  





 






  85  US-DOCS\125501258.12  Australian L/C Exposure shall not exceed the Australian Dollar Equivalent of U.S.$10,000,000,  and (ii) the aggregate Australian Revolving Credit Exposure shall not exceed the Total Australian  Revolving Commitment.  (c) Expiration Date.  Each U.S. Letter of Credit and Canadian Letter of Credit  shall have an expiration date not later than the earlier of (y) three years after the date of the issuance  of such Letter of Credit and (z) the date that is 24 months after the Maturity Date; provided that  60 days prior to the Maturity Date the Borrowers shall deposit in an account with the U.S.  Collateral Agent or the Canadian Collateral Agent, as the case may be, for the benefit of the U.S.  Revolving Lenders or Canadian Revolving Lenders, as the case may be, an amount in cash equal  to 105% of the U.S. L/C Exposure or Canadian L/C Exposure, respectively, as of such date.  Such  deposit shall be held by the U.S. Collateral Agent or the Canadian Collateral Agent, as the case  may be, as collateral for the payment and performance of the Obligations.  Such Collateral Agent  shall have exclusive dominion and control, including the exclusive right of withdrawal, over such  account.  Other than any interest earned on the investment of such deposits in Permitted  Investments, which investments shall be made at the option and sole discretion of such Collateral  Agent, such deposits shall not bear interest.  Interest or profits, if any, on such investments shall  accumulate in such account.  The Applicable Administrative Agent may, at any time and from  time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral  be provided in order to protect against the results of exchange rate fluctuations.  Moneys in such  account shall (i) automatically be applied by the Applicable Administrative Agent to reimburse  the Applicable Issuing Bank for L/C Disbursements for which it has not been reimbursed, (ii) be  held for the satisfaction of the reimbursement obligations of the Applicable Borrower for the U.S.  L/C Exposure or the Canadian L/C Exposure, as applicable, at such time, (iii) if the maturity of  the Loans has been accelerated, be applied to satisfy the Obligations and (iv) provided that no  Event of Default has occurred and is continuing, be released to the Borrowers to the extent that the  funds on deposit exceed 105% of the U.S. L/C Exposure or the Canadian L/C Exposure,  respectively.  Each Australian Letter of Credit shall have an expiration date not later than the  Maturity Date.  (d) Participations.  By the issuance of a Letter of Credit and without any further  action on the part of an Issuing Bank or the Lenders, the Applicable Issuing Bank hereby grants to  each U.S. Revolving Lender, Canadian Revolving Lender or Australian Lender, as the case may  be, and each such Revolving Lender hereby acquires from the Applicable Issuing Bank, a  participation in such Letter of Credit equal to such Lender’s U.S. Revolving Pro Rata Percentage,  Canadian Revolving Pro Rata Percentage or Australian Revolving Pro Rata Percentage, as  applicable, of the aggregate amount available to be drawn under such Letter of Credit, effective  upon the issuance of such Letter of Credit (or, in the case of the Rolled Letters of Credit, effective  upon the Closing Date).  In consideration and in furtherance of the foregoing, each Revolving  Lender hereby absolutely and unconditionally agrees to pay to the Applicable Administrative  Agent, for the account of the Applicable Issuing Bank, such Lender’s U.S. Revolving Pro Rata  Percentage, Canadian Revolving Pro Rata Percentage or Australian Revolving Pro Rata  Percentage, as applicable, of the U.S. Dollar Equivalent of each L/C Disbursement (except (i) in  the case of Canadian Letter of Credit, in which case such payment shall be made in Canadian  dollars or (ii) in the case of an Australian Letter of Credit, in which case such payment shall be  made in Australian dollars), made by such Issuing Bank and not reimbursed by the Applicable  Borrower (or, if applicable, another party pursuant to its obligations under any other Loan  





 






  86  US-DOCS\125501258.12  Document) forthwith on the date due as provided in Section 2.02(g).  Each Revolving Lender  acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in  respect of Letters of Credit is absolute and unconditional and shall not be affected by any  circumstance whatsoever, including the occurrence and continuance of a Default or an Event of  Default, and that each such payment shall be made without any offset, abatement, withholding or  reduction whatsoever.  (e) Reimbursement.  If an Issuing Bank shall make any L/C Disbursement in  respect of a Letter of Credit, the Applicable Borrower shall pay to the Applicable Administrative  Agent, for the account of the Applicable Issuing Bank, an amount equal to such L/C Disbursement  in the same currency in which such L/C Disbursement is denominated (or, if such currency is not  acceptable to the Applicable Administrative Agent, in U.S. dollars) not later than two hours after  such Borrower shall have received notice from such Issuing Bank that payment of such draft will  be made, or, if such Borrower shall have received such notice later than 11:00 a.m. (Standard  Time) on any Business Day, not later than 11:00 a.m. (Standard Time)  on the immediately  following Business Day.  (f) Obligations Absolute.  Each Borrower’s obligations to reimburse L/C  Disbursements as provided in paragraph (e) above shall be absolute, unconditional and  irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under  any and all circumstances whatsoever, and irrespective of:  (i) any lack of validity or enforceability of any Letter of Credit or any  Loan Document, or any term or provision therein;  (ii) any amendment or waiver of or any consent to departure from all or  any of the provisions of any Letter of Credit or any Loan Document;  (iii) the existence of any claim, counterclaim, setoff, defense or other  right that such Borrower, any other party guaranteeing, or otherwise obligated with, such  Borrower, any subsidiary or other Affiliate thereof or any other person may at any time  have against the beneficiary under any Letter of Credit, the Applicable Issuing Bank, any  Agent or any Lender or any other person, whether in connection with this Agreement, any  other Loan Document or any other related or unrelated agreement or transaction;  (iv) any draft or other document presented under a 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;  (v) any payment by the Applicable Issuing Bank under a Letter of Credit  against presentation of a draft or other document that does not strictly comply with the  terms of such Letter of Credit; or any payment made by the Issuing Bank 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  





 






  87  US-DOCS\125501258.12  successor to any beneficiary or any transferee of such Letter of Credit, including any arising  in connection with any proceeding under any Insolvency Law; and  (vi) any adverse change in the relevant exchange rates or in the  availability of the relevant Alternative Currency to any Borrower, any Subsidiary or any  other person, or in the relevant currency markets generally; or  (vii) any other act or omission to act or delay of any kind of the  Applicable Issuing Bank, the Lenders, the Agents or any other person or any other event  or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but  for the provisions of this Section, constitute a legal or equitable discharge of such  Borrower’s obligations hereunder.  Without limiting the generality of the foregoing but subject to the proviso in subsection (g)  below, it is expressly understood and agreed that the absolute and unconditional obligation of each  Borrower hereunder to reimburse L/C Disbursements will not be excused by the gross negligence  or willful misconduct of the Applicable Issuing Bank.  (g) Role of Issuing Bank.  Each Borrower assumes all risks of the acts or  omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such  Letter of Credit.  None of the Issuing Banks, the Agents, any of their respective Related Parties or  any correspondent, participant or assignee of any Issuing Bank shall be liable or responsible for:  (i) the use which may be made of any Letter of Credit or any acts or  omissions of any beneficiary or transferee in connection therewith;  (ii) the validity, sufficiency or genuineness of documents, or of any  endorsement thereon, even if such documents should prove to be in any or all respects  invalid, insufficient, fraudulent or forged; or  (iii) any other circumstances whatsoever in making or failing to make  payment under any Letter of Credit (including the Issuing Bank’s own negligence),  provided, however, that a Borrower shall have a claim against the Applicable Issuing Bank, and  such Issuing Bank shall be liable to, and shall promptly pay to, such Borrower, to the extent of any  direct, as opposed to consequential (claims in respect of which are hereby waived by such  Borrower to the extent permitted by applicable law), damages suffered by such Borrower that are  caused by such Issuing Bank’s failure to comply with its duties as an issuing bank under applicable  law or gross negligence or willful misconduct in determining whether drafts and other documents  presented under a Letter of Credit strictly comply with the terms thereof.  It is understood that the  Applicable Issuing Bank 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,  in making any payment under any Letter of Credit (i) such Issuing Bank’s exclusive reliance on  the documents presented to it under such Letter of Credit as to any and all matters set forth therein,  including reliance on the amount of any draft presented under such Letter of Credit, whether or  not the amount due to the beneficiary thereunder equals the amount of such draft and whether or  not any document presented pursuant to such Letter of Credit proves to be insufficient in any  respect, if such document on its face appears to be in order, and whether or not any other statement  





 






  88  US-DOCS\125501258.12  or any other document presented pursuant to such Letter of Credit proves to be forged or invalid  or any statement therein proves to be inaccurate or untrue in any respect whatsoever and (ii) any  noncompliance in any immaterial respect of the documents presented under such Letter of Credit  with the terms thereof shall, in each case, be deemed not to constitute willful misconduct or gross  negligence of the Applicable Issuing Bank. Each Revolving Lender and each Borrower agree that,  in paying any drawing under a Letter of Credit, the Applicable Issuing Bank shall not have any  responsibility to obtain any document (other than any sight draft, certificates and documents  expressly required by the 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.  (h) Disbursement Procedures.  The Applicable Issuing Bank shall, promptly  following its receipt thereof, examine all documents purporting to represent a demand for payment  under a Letter of Credit.  The Applicable Issuing Bank shall as promptly as possible give  telephonic notification, confirmed by fax or by electronic communication (e-mail), to the  Applicable Administrative Agent and the Applicable Borrower of such demand for payment and  whether the Applicable Issuing Bank has made or will make an L/C Disbursement thereunder;  provided that any failure to give or delay in giving such notice shall not relieve the Applicable  Borrower of its obligation to reimburse the Applicable Issuing Bank and the Revolving Lenders  with respect to any such L/C Disbursement.  The Applicable Administrative Agent shall promptly  give each Applicable Lender notice thereof.  (i) Interim Interest.  If an Issuing Bank shall make any L/C Disbursement in  respect of a Letter of Credit, then, unless the Applicable Borrower shall reimburse such L/C  Disbursement in full on such date, the unpaid amount thereof shall bear interest for the account of  the Applicable Issuing Bank, for each day from and including the date of such L/C Disbursement,  to but excluding the earlier of the date of payment by such Borrower or the date on which interest  shall commence to accrue thereon as provided in Section 2.02(e), at the rate per annum that would  apply to such amount if such amount were an ABR Loan, a Canadian Prime Rate Loan (for  Canadian Letters of Credit) or, in the case of any L/C Disbursement with respect to an Australian  Letter of Credit, a BBSY Rate Loan, as the case may be.  (j) Resignation or Removal of an Issuing Bank.  An Issuing Bank may resign  at any time by giving 30 days’ prior written notice to the Applicable Administrative Agent, the  Applicable Lenders and the Parent Borrower, and may be removed at any time by the Parent  Borrower by notice to such Issuing Bank, the Applicable Administrative Agent and the Applicable  Lenders.  Subject to the next succeeding paragraph, upon the acceptance of any appointment as an  Issuing Bank hereunder by a Lender that shall agree to serve as successor Issuing Bank, such  successor shall succeed to and become vested with all the interests, rights and obligations of the  retiring Issuing Bank and the retiring Issuing Bank shall be discharged from its obligations to issue  additional Letters of Credit hereunder.  At the time such removal or resignation shall become  effective, the Applicable Borrower shall pay all accrued and unpaid Issuing Bank Fees pursuant to  Section 2.05(c).  The acceptance of any appointment as an Issuing Bank hereunder by a successor  Lender shall be evidenced by an agreement entered into by such successor, in a form satisfactory  to each Applicable Borrower and the Applicable Administrative Agent, and, from and after the  effective date of such agreement, (i) such successor Lender shall have all the rights and obligations  of the previous Issuing Bank under this Agreement and the other Loan Documents and (ii)  references herein and in the other Loan Documents to the term “Issuing Bank” shall be deemed to  





 






  89  US-DOCS\125501258.12  refer to such successor or to any previous Issuing Bank, or to such successor and all previous  Issuing Banks, as the context shall require.  After the resignation or removal of an Issuing Bank  hereunder, the retiring Issuing Bank shall remain a party hereto and shall continue to have all the  rights and obligations of an Issuing Bank under this Agreement and the other Loan Documents  with respect to Letters of Credit issued by it prior to such resignation or removal, but shall not be  required to issue additional Letters of Credit.  (k) Cash Collateralization.  If (i) any Event of Default shall occur and be  continuing, other than an event with respect to a Borrower described in Section 7.01(g) or (h) and  a Borrower shall receive notice from Applicable Administrative Agent or the Required U.S.  Lenders, the Required Canadian Revolving Lenders or the Required Australian Lenders, as  applicable, requesting that it deposit Cash Collateral and specifying the amount to be deposited, or  (ii) an Event of Default shall occur and be continuing with respect to a Borrower described in  Section 7.01(g) or (h) then such Borrower shall, on the Business Day it receives the notice  referenced in clause (i) above or immediately upon the occurrence of the Event of Default  referenced in clause (ii) above, deposit in an account with the U.S. Collateral Agent, the Canadian  Collateral Agent or the Australian Collateral Agent, as the case may be, for the benefit of the U.S.  Revolving Lenders, Canadian Revolving Lenders or Australian Lenders, as the case may be, an  amount in cash equal to 105% of the U.S. L/C Exposure, the Canadian L/C Exposure or the  Australian L/C Exposure, respectively, as of such date.  At any time that there shall exist a  Defaulting Lender, after reallocation pursuant to Section 2.24(c), promptly upon the request of an  Administrative Agent or an Issuing Bank (which request may be a condition to the issuance  amendment, renewal or extension of a Letter of Credit), the Applicable Borrower shall deliver to  the U.S. Collateral Agent, the Canadian Collateral Agent or the Australian Collateral Agent, as the  case may be, for the benefit of the U.S. Revolving Lenders, Canadian Revolving Lenders or  Australian Lenders, as the case may be, Cash Collateral in an amount equal to the Fronting  Exposure at such time (determined for the avoidance of doubt, after giving effect to Section 2.24(a)  and any Cash Collateral provided by any Defaulting Lender).  Such deposits shall be held by the  U.S. Collateral Agent, the Canadian Collateral Agent or the Australian Collateral Agent, as the  case may be, as collateral for the payment and performance of the Obligations.  Such Collateral  Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over  such account.  If a Borrower is required to Cash Collateralize the U.S. L/C Exposure, Canadian  L/C Exposure, Australian L/C Exposure or Fronting Exposure pursuant to Section 2.22(c) or (k),  then such Borrower and the Applicable Collateral Agent shall establish a cash collateral account  (an “L/C Cash Collateral Account”) and the Applicable Borrower shall execute any documents  and agreements that such Collateral Agent reasonably requests in connection therewith to establish  the L/C Cash Collateral Account and grant such Collateral Agent a first-priority security interest  in such account and the funds therein.  Each Borrower hereby pledges to the Applicable Collateral  Agent and grants such Collateral Agent a security interest in the L/C Cash Collateral Account,  whenever established, all funds held in such L/C Cash Collateral Account from time to time and  all proceeds thereof as security for the payment of the Obligations.  Other than any interest earned  on the investment of such deposits in Permitted Investments, which investments shall be made at  the option and sole discretion of such Collateral Agent, such deposits shall not bear interest.   Interest or profits, if any, on such investments shall accumulate in such account.  The Applicable  Administrative Agent may, at any time and from time to time after the initial deposit of such Cash  Collateral, request that additional Cash Collateral be provided in order to protect against the results  of exchange rate fluctuations.  Moneys in such account shall (i) automatically be applied by the  





 






  90  US-DOCS\125501258.12  Applicable Administrative Agent to reimburse the Applicable Issuing Bank for L/C Disbursements  for which it has not been reimbursed, (ii) be held for the satisfaction of the reimbursement  obligations of the Applicable Borrower for the U.S. L/C Exposure, the Canadian L/C Exposure or  the Australian L/C Exposure, as applicable, at such time and (iii) if the maturity of the Loans has  been accelerated, be applied to satisfy the Obligations.  If a Borrower is required to provide an  amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default, such  amount (to the extent not applied as aforesaid) shall be returned to such Borrower within three  Business Days after all Events of Default have been cured or waived.  Cash Collateral (or the  appropriate portion thereof) provided to reduce Fronting Exposure shall be released promptly  following (A) the elimination of the applicable Fronting Exposure or other obligations giving rise  thereto (including by any Defaulting Lender ceasing to be a Defaulting Lender or ceasing to be a  Revolving Lender) or (B) the Administrative Agent’s good faith determination that there exists  excess Cash Collateral; provided, however, that Cash Collateral furnished by or on behalf of a  Loan Party shall not be released during the continuance of an Event of Default and may be  otherwise applied in accordance with Section 7.06.  (l) Additional Issuing Banks.  A Borrower may, at any time and from time to  time with the consent of the Applicable Administrative Agent (which consent shall not be  unreasonably withheld or delayed) and such Revolving Lender, designate one or more additional  Revolving Lenders to act as an issuing bank under the terms of this Agreement.  The acceptance  of any appointment as an Issuing Bank hereunder by a Revolving Lender shall be evidenced by an  agreement entered into by such Revolving Lender, in a form satisfactory to each Applicable  Borrower and the Applicable Administrative Agent, and, from and after the effective date of such  agreement, any Lender designated as an issuing bank pursuant to this paragraph (l) shall be deemed  (in addition to being a Lender) to be the Issuing Bank with respect to Letters of Credit issued or to  be issued by such Lender, and all references herein and in the other Loan Documents to the term  “Issuing Bank” shall, with respect to such Letters of Credit, be deemed to refer to such Lender in  its capacity as Issuing Bank.  (m) In the event of any conflict between the terms hereof and the terms of any  Letter of Credit Document, the terms hereof shall control.  (n) Notwithstanding that a Letter of Credit issued or outstanding hereunder is  in support of any obligations of, or is for the account of, a Borrower or any Subsidiary of such  Borrower, each Borrower shall be obligated to reimburse the Applicable Issuing Bank hereunder  for any and all L/C Disbursements under such Letter of Credit requested by such Borrower for its  own account or for the account of any of its Subsidiaries.  Each Borrower hereby acknowledges  that the issuance of Letters of Credit for the account of any of its Subsidiaries (other than, with  respect to the U.S. Borrower, the Parent Borrower or any Subsidiary thereof or the Australian  Borrower or any Subsidiary thereof) inures to the benefit of such Borrower, and that such  Borrower’s business derives substantial benefits from the businesses of such Borrower’s  Subsidiaries.  (o) Each Issuing Bank, the Revolving Lenders and the Borrowers agree that  effective as of the Closing Date, the Rolled Letters of Credit shall be deemed to have been issued  and maintained under, and to be governed by the terms and conditions of, this Agreement.  





 






  91  US-DOCS\125501258.12  SECTION 2.22 Bankers’ Acceptances.  (a) Subject to the terms and conditions of this  Agreement, the Parent Borrower may request a Borrowing denominated in Canadian dollars by  presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Lenders.  (b) No Contract Period with respect to a B/A to be accepted and, if applicable,  purchased as a Loan shall extend beyond the Maturity Date.  All B/A Loans shall be denominated  in Canadian dollars.  (c) To facilitate availment of the B/A Loans, the Parent Borrower hereby  appoints each Canadian Lender as its attorney to sign and endorse on its behalf, in handwriting or  by facsimile or mechanical signature as and when deemed necessary by such Canadian Lender,  blank forms of B/As in the form requested by such Canadian Lender.  The Parent Borrower  recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Lender  shall bind such Parent Borrower as fully and effectually as if signed in the handwriting of and duly  issued by the proper signing officers of such Parent Borrower.  Each Canadian Lender is hereby  authorized to issue such B/As endorsed in blank in such face amounts as may be determined by  such Canadian Lender; provided that the aggregate amount thereof is equal to the aggregate  amount of B/As required to be accepted and purchased by such Canadian Lender.  No Canadian  Lender shall be liable for any damage, loss or other claim arising by reason of any loss or improper  use of any such instrument except the gross negligence or willful misconduct of such Canadian  Lender.  Each applicable Canadian Lender shall maintain a record with respect to B/As (i) voided  by it for any reason, (ii) accepted and purchased by it hereunder and (iii) canceled at their  respective maturities.  Each Canadian Lender further agrees to retain such records in the manner  and for the statutory periods provided in the various provincial or federal statutes and regulations  which apply to such Canadian Lender.  On request by or on behalf of the Parent Borrower, a  Canadian Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on  behalf of such Parent Borrower and which are held by such Canadian Lender and are not required  to be issued in accordance with such Parent Borrower’s irrevocable notice.  At the discretion of a  Lender, Bankers’ Acceptances to be accepted by such Lender may be issued in the form of  “Depository Bills” within the meaning of the Depository Bills and Notes Act (Canada) and  deposited with the Canadian Depository for Securities Limited (“CDS”) and may be made payable  to “CDS & Co.” or in such other name as may be acceptable to CDS and thereafter dealt with in  accordance with the rules and procedures of CDS, consistent with the terms of this Agreement.   All Depository Bills so issued shall be governed by the provisions of this Section 2.22.  (d) Drafts of the Parent Borrower to be accepted as B/As hereunder shall be  signed as set forth in this Section 2.22.  Notwithstanding that any person whose signature appears  on any B/A may no longer be an authorized signatory for any of the Canadian Lenders or the  Parent Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and  sufficient for all purposes as if such authority had remained in force at the time of such issuance  and any such B/A so signed shall be binding on such Parent Borrower.  (e) Promptly following receipt of a notice of borrowing, continuation or  conversion of B/As, the Canadian Administrative Agent shall so advise the Canadian Lenders, and  shall advise each Canadian Lender, of the aggregate face amount of the B/As to be accepted by it  and the applicable Contract Period (which shall be identical for all Canadian Lenders).  The  aggregate face amount of the B/As to be accepted by a Canadian Lender shall be in an integral  





 






  92  US-DOCS\125501258.12  multiple of C$100,000 and such face amount shall be in each Canadian Lender’s pro rata portion  of such Canadian Borrowing; provided, that the Canadian Administrative Agent may, in its sole  discretion, increase or reduce any Canadian Lender’s portion of such B/A to the nearest  C$100,000.  (f) The Parent Borrower may specify in a notice of borrowing or conversion or  continuation pursuant to Section 2.03 or Section 2.10, respectively, that it desires that any B/As  requested by such notice be purchased by the applicable Canadian Lenders, in which case the  applicable Canadian Lenders shall purchase, or arrange the purchase of, each B/A from such Parent  Borrower at the B/A Discount Rate for such Canadian Lender applicable to such B/A accepted by  it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of such  Parent Borrower.  The Acceptance Fee payable by such Parent Borrower to a Canadian Lender  under Section 2.06 in respect of each B/A accepted by such Canadian Lender shall be set off  against the Discount Proceeds payable by such Canadian Lender under this Section 2.22.  (g) Each Canadian Lender may at any time and from time to time hold, sell,  rediscount or otherwise dispose of any or all B/As accepted and purchased by it.  (h) If a Canadian Lender notifies the Canadian Administrative Agent in writing  that it is unable or unwilling to accept Bankers’ Acceptances, such Canadian Lender will, instead  of accepting and, if applicable, purchasing Bankers’ Acceptances, make an advance (a “B/A  Equivalent Loan”) to the Parent Borrower in the amount and for the same term as the draft that  such Canadian Lender would otherwise have been required to accept and purchase hereunder.   Each such Canadian Lender will provide to the Canadian Administrative Agent the Discount  Proceeds of such B/A Equivalent Loan for the account of such Parent Borrower.  Each such B/A  Equivalent Loan will bear interest at the same rate that would result if such Lender had accepted  (and been paid an Acceptance Fee) and purchased (on a discounted basis at the B/A Discount Rate)  a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that  each such B/A Equivalent Loan shall have the same economic consequences for the Lenders and  the Parent Borrower as the Bankers’ Acceptance which such B/A Equivalent Loan replaces).  All  such interest shall be paid in advance on the date such B/A Equivalent Loan is made, and will be  deducted from the principal amount of such B/A Equivalent Loan in the same manner in which  the Discount Proceeds of a Bankers’ Acceptance would be deducted from the face amount of the  Bankers’ Acceptance.  Each B/A Equivalent Loan shall be evidenced by a non-interest bearing  promissory note (a “Discount Note”) of the Parent Borrower, denominated in Canadian dollars,  executed and delivered by the Parent Borrower to such Canadian Lender, substantially in the form  of Exhibit G.  (i) The Parent Borrower waives presentment for payment and any other  defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and  purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being  held, at the maturity thereof, by such Canadian Lender in its own right and the Parent Borrower  agrees not to claim any days of grace if such Canadian Lender as holder sues such Parent Borrower  on the B/A for payment of the amount payable by such Parent Borrower thereunder.  On the last  day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant  to the provisions of this Agreement, the Parent Borrower shall pay the Canadian Lender that has  accepted and purchased such B/A the full face amount of such B/A and after such payment, such  





 






  93  US-DOCS\125501258.12  Parent Borrower shall have no further liability in respect of such B/A and such Canadian Lender  shall be entitled to all benefits of, and be responsible for all payments due to third parties under,  such B/A.  (j) Except as required by any Canadian Lender upon the occurrence of an Event  of Default, no B/A Loan may be repaid by the Parent Borrower prior to the expiry date of the  Contract Period applicable to such B/A Loan; provided, however, that any B/A Loan may be  defeased as provided in the proviso to Section 2.11(a).  (k) With respect to any repayment of unmatured B/A’s pursuant to the proviso  to Section 2.11(a) or otherwise hereunder, it is agreed that the Parent Borrower shall provide for  the funding in full of the unmatured B/A’s to be repaid by paying to and depositing with the  Canadian Administrative Agent Cash Collateral for each such unmatured B/A equal to the face  amount payable at maturity thereof.  The Canadian Administrative Agent shall hold such Cash  Collateral in an interest bearing Cash Collateral account at rates prevailing at the time of deposit  for similar accounts with the Canadian Administrative Agent; such Cash Collateral, such Cash  Collateral account, any accounts receivable, claims, instruments or securities evidencing or  relating to the foregoing, and any proceeds of any of the foregoing (collectively, the “Outstanding  BAs Collateral”) shall be assigned to the Canadian Administrative Agent as security for the  obligations of the Parent Borrower in relation to such B/A’s and the security interest of the  Canadian Administrative Agent created in such Outstanding BAs Collateral shall rank in priority  to all other security interests and adverse claims against such Outstanding BAs Collateral.  Such  Outstanding BAs Collateral shall be applied to satisfy the obligations of the Parent Borrower for  such B/A’s as they mature and the Canadian Administrative Agent is hereby irrevocably directed  by the Parent Borrower to apply any such Outstanding BAs Collateral to such maturing B/A’s.   The Outstanding BAs Collateral created herein shall not be released to the Parent Borrower prior  to the maturity of the applicable B/As without the consent of the applicable Canadian Lenders;  however, interest on such deposited amounts shall be for the account of the Parent Borrower and  may be withdrawn by the Parent Borrower so long as no Default or Event of Default is then  continuing.  If, after maturity of the B/A’s for which such Outstanding BAs Collateral is held and  application by the Canadian Administrative Agent of the Outstanding BAs Collateral to satisfy the  obligations of the Parent Borrower hereunder with respect to the B/A’s being repaid, any interest  or other proceeds of the Outstanding BAs Collateral remains, such interest or other proceeds shall  be promptly paid and transferred by the Canadian Administrative Agent to the Parent Borrower so  long as no Default or Event of Default is then continuing.  SECTION 2.23 Swing Line Loans.  (a) Generally.    (i) The U.S. Swing Line.  Subject to the terms and conditions set forth  herein, and if an AutoBorrow Agreement is in effect, subject to the terms and conditions  of such AutoBorrow Agreement, the U.S. Swing Line Lender may in its sole and absolute  discretion, in reliance upon the agreements of the other U.S. Revolving Lenders set forth  in this Section 2.23, make loans in U.S. dollars (each such loan, a “U.S. Swing Line Loan”)  to the U.S. Borrower from time to time on or after the Closing Date until the earlier of the  Maturity Date and the termination of the Total U.S. Revolving Commitments in an  





 






  94  US-DOCS\125501258.12  aggregate amount not to exceed at any time outstanding the amount of the U.S. Swing Line  Sublimit, notwithstanding the fact that such U.S. Swing Line Loans, when aggregated with  the U.S. Revolving Credit Exposure of the Lender acting as U.S. Swing Line Lender, may  exceed the amount of such Lender’s U.S. Revolving Commitment; provided, however, that  after giving effect to any U.S. Swing Line Loan, (i) the aggregate U.S. Revolving Credit  Exposure of all U.S. Revolving Lenders shall not exceed the Total U.S. Revolving  Commitments at such time, and (ii) the U.S. Revolving Credit Exposure of each U.S.  Revolving Lender at such time shall not exceed such Lender’s U.S. Revolving  Commitment, and provided, further, that the U.S. Borrower shall not use the proceeds of  any U.S. Swing Line Loan to refinance any outstanding U.S. Swing Line Loan.  Within the  foregoing limits, the U.S. Borrower may borrow under this Section 2.23(a), prepay under  Section 2.11, and reborrow under this Section 2.23(a).  Immediately upon the making of a  U.S. Swing Line Loan, each U.S. Revolving Lender shall be deemed to, and hereby  irrevocably and unconditionally agrees to, purchase from the U.S. Swing Line Lender a  risk participation in such U.S. Swing Line Loan in an amount equal to the product of such  U.S. Revolving Lender’s U.S. Revolving Pro Rata Percentage (expressed as a decimal)  times the amount of such U.S. Swing Line Loan.  Each U.S. Revolving Lender shall have  the obligation to purchase and fund risk participations in the U.S. Swing Line Loans and  to refinance U.S. Swing Line Loans as provided in this Agreement.    (ii) The Canadian Swing Line.  Subject to the terms and conditions set  forth herein, and if an AutoBorrow Agreement is in effect, subject to the terms and  conditions of such AutoBorrow Agreement, the Canadian Swing Line Lender may in its  sole and absolute discretion, in reliance upon the agreements of the other Canadian  Revolving Lenders set forth in this Section 2.23, make loans in Canadian dollars or U.S.  dollars (each such loan, a “Canadian Swing Line Loan”) to the Parent Borrower from time  to time on or after the Closing Date until the earlier of the Maturity Date and the termination  of the Total Canadian Revolving Commitments in an aggregate amount not to exceed at  any time outstanding the amount of the Canadian Swing Line Sublimit, notwithstanding  the fact that such Canadian Swing Line Loans, when aggregated with the Canadian  Revolving Credit Exposure of the Lender acting as Canadian Swing Line Lender, may  exceed the amount of such Lender’s Canadian Revolving Commitment; provided,  however, that after giving effect to any Canadian Swing Line Loan, (i) the aggregate  Canadian Revolving Credit Exposure of all Canadian Revolving Lenders shall not exceed  the Total Canadian Revolving Commitments at such time, and (ii) the Canadian Revolving  Credit Exposure of each Canadian Revolving Lender at such time shall not exceed such  Lender’s Canadian Revolving Commitment, and provided, further, that the Parent  Borrower shall not use the proceeds of any Canadian Swing Line Loan to refinance any  outstanding Canadian Swing Line Loan.  Within the foregoing limits, the Parent Borrower  may borrow under this Section 2.23(a)(ii), prepay under Section 2.11, and reborrow under  this Section 2.23(a)(ii).  Immediately upon the making of a Canadian Swing Line Loan,  each Canadian Revolving Lender shall be deemed to, and hereby irrevocably and  unconditionally agrees to, purchase from the Canadian Swing Line Lender a risk  participation in such Canadian Swing Line Loan in an amount equal to the product of such  Canadian Revolving Lender’s Canadian Revolving Pro Rata Percentage (expressed as a  decimal) times the amount of such Canadian Swing Line Loan.  Each Canadian Revolving  Lender shall have the obligation to purchase and fund risk participations in the Canadian  





 






  95  US-DOCS\125501258.12  Swing Line Loans and to refinance Canadian Swing Line Loans as provided in this  Agreement.  (b) Borrowing Procedures.  If an AutoBorrow Agreement is in effect, each  Swing Line Borrowing shall be made as provided in such AutoBorrow Agreement.  Otherwise, in  order to request a Swing Line Borrowing, the Applicable Borrower shall hand deliver, fax or send  by electronic communication (e-mail) (or by telephone notice promptly confirmed by a written,  fax or electronic communication (e-mail)) to the Applicable Swing Line Lender and the Applicable  Administrative Agent a duly completed Borrowing Request not later than 2:00 p.m. (Standard  Time) on the day of the proposed Swing Line Borrowing.  Each such Borrowing Request shall be  irrevocable, shall be signed by or on behalf of the Applicable Borrower and shall specify the  following information: (i) the date of such Swing Line Borrowing (which shall be a Business Day);  (ii) in the case of a Canadian Swing Line Borrowing, whether such Canadian Swing Line  Borrowing is to be denominated in Canadian dollars or U.S. dollars; and (iii) the amount of such  Swing Line Borrowing, which shall be a minimum of U.S.$1,000,000, except as otherwise set  forth in any AutoBorrow Agreement.  Promptly after receipt by the Applicable Swing Line Lender  of any Borrowing Request, the Applicable Swing Line Lender will confirm with the Applicable  Administrative Agent (by telephone or in writing) that the Applicable Administrative Agent has  also received such Borrowing Request and, if not, the Applicable Swing Line Lender will notify  the Applicable Administrative Agent (by telephone or in writing) of the contents thereof.  Unless  the Applicable Swing Line Lender has received notice (by telephone or in writing) from the  Applicable Administrative Agent (including at the request of any Applicable Lender) prior to 2:00  p.m. (Standard Time) on the date of the proposed Swing Line Borrowing (A) directing the  Applicable Swing Line Lender not to make such Swing Line Loan as a result of the limitations set  forth in the first proviso to the first sentence of either Section 2.23(a)(i) or Section 2.23(a)(ii), 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 Applicable Swing Line Lender will, not later than  1:00 p.m. (Standard Time) on the borrowing date specified in such Borrowing Request, make the  amount of its Swing Line Loan available to the Applicable Borrower at its office by crediting the  account of the Applicable Borrower on the books of the Applicable Swing Line Lender in  immediately available funds.  If an AutoBorrow Agreement is in effect, such additional terms and  conditions of such AutoBorrow Agreement shall have been satisfied, and in the event that any of  the terms of this Section 2.23 conflict with such AutoBorrow Agreement, the terms of the  AutoBorrow Agreement shall govern and control.  No Applicable Lender shall have any rights or  obligations under any AutoBorrow Agreement, but each Applicable Lender shall have the  obligation to purchase and fund risk participations in the Swing Line Loans and to refinance Swing  Line Loan as provided herein.  (c) Refinancing of Swing Line Loans.  (i)  The Applicable Swing Line Lender  at any time in its sole and absolute discretion may request, on behalf of the Applicable Borrower  (which hereby irrevocably authorizes the Applicable Swing Line Lender to so request on its  behalf), or the Applicable Borrower at any time in its sole and absolute discretion may request,  that each Applicable Lender make (A) with respect to U.S. Swing Line Loans, an ABR Loan in an  amount equal to such Lender’s U.S. Revolving Pro Rata Percentage of the amount of U.S. Swing  Line Loans then outstanding and (B)(1) with respect to Canadian Swing Line Loans denominated  in Canadian dollars, a Canadian Prime Rate Loan or (2) with respect to Canadian Swing Line  Loans denominated in U.S. dollars, a U.S. Base Rate Loan, in each case in an amount equal to  





 






  96  US-DOCS\125501258.12  such Lender’s Canadian Revolving Pro Rata Percentage of the amount of Canadian Swing Line  Loans then outstanding.  Such request shall be made in writing (which written request shall be  deemed to be a Borrowing Request 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 ABR Loans, Canadian Prime Rate Loans or U.S. Base Rate Loans, as applicable, but  subject to the unutilized portion of the Total U.S. Revolving Commitments or Total Canadian  Revolving Commitments, as applicable, and the conditions set forth in Section 4.01.  The  Applicable Swing Line Lender or the Applicable Borrower, as applicable, shall furnish to the other  a copy of the applicable Borrowing Request promptly after delivering such notice to the Applicable  Administrative Agent.  Each Applicable Lender shall make an amount equal to its Applicable Pro  Rata Percentage of the amount specified in such Borrowing Request available to the Applicable  Administrative Agent in immediately available funds for the account of the Applicable Swing Line  Lender at the office designated by the Applicable Administrative Agent not later than 1:00 p.m.  (Standard Time) on the day specified in such Borrowing Request, whereupon, subject to Section  2.23(c)(ii), each Applicable Lender that so makes funds available shall be deemed to have made a  ABR Loan, Canadian Prime Rate Loan or U.S. Base Rate Loan, as applicable, to the Applicable  Borrower in such amount.  The Applicable Administrative Agent shall remit the funds so received  to the Applicable Swing Line Lender.  (ii) If for any reason any Swing Line Loan cannot be refinanced by a  U.S. Revolving Borrowing or a Canadian Revolving Borrowing, as applicable, in  accordance with Section 2.23(c)(i), the request for ABR Loans, Canadian Prime Rate  Loans or U.S. Base Rate Loans, as applicable, submitted by the Applicable Swing Line  Lender or the Applicable Borrower as set forth herein shall be deemed to be a request by  the Applicable Swing Line Lender that each of the Applicable Lenders fund its risk  participation in the relevant Swing Line Loan and each Applicable Lender’s payment to  the Applicable Administrative Agent for the account of the Applicable Swing Line Lender  pursuant to Section 2.23(c)(i) shall be deemed payment in respect of such participation.  (iii) If any Applicable Lender fails to make available to the Applicable  Administrative Agent for the account of the Applicable Swing Line Lender any amount  required to be paid by such Lender pursuant to the foregoing provisions of this  Section 2.23(c) by the time specified in Section 2.23(c)(i), the Applicable Swing Line  Lender shall be entitled to recover from such Lender (acting through the Applicable  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 Applicable Swing Line Lender at a rate per annum equal to the greater of  the Federal Funds Effective Rate and a rate determined by the Applicable Swing Line  Lender in accordance with banking industry rules on interbank compensation.  If such  Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall  constitute such Lender’s Loan included in the relevant Borrowing or funded participation  in the relevant Swing Line Loan, as the case may be.  A certificate of the Applicable Swing  Line Lender submitted to any Lender (through the Applicable Administrative Agent) with  respect to any amounts owing under this clause (iii) shall be presumed correct absent  manifest error.  





 






  97  US-DOCS\125501258.12  (iv) Each Applicable Lender’s obligation to make Revolving Credit  Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this  Section 2.23(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 Applicable Swing Line Lender, the Applicable  Borrower or any other person for any reason whatsoever, (B) the occurrence or continuance  of a Default or an Event of Default, or (C) any other occurrence, event or condition,  whether or not similar to any of the foregoing; provided, however, that each Applicable  Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.23(c) is  subject to the conditions set forth in Section 4.01.  No such funding of risk participations  shall relieve or otherwise impair the obligation of the Applicable Borrower to repay Swing  Line Loans, together with interest as provided herein.  (d) Repayment of Participations.  (i)  At any time after any Applicable Lender  has purchased and funded a risk participation in a Swing Line Loan, if the Applicable Swing Line  Lender receives any payment on account of such Swing Line Loan, the Applicable Swing Line  Lender will distribute to such Applicable Lenders their Applicable Pro Rata Percentage thereof in  the same funds as those received by the Applicable Swing Line Lender.  (ii) If any payment received by the Applicable Swing Line Lender in  respect of principal or interest on any Swing Line Loan is required to be returned by the  Applicable Swing Line Lender under any of the circumstances described in Section 9.19  (including pursuant to any settlement entered into by the Applicable Swing Line Lender in  its discretion), each Applicable Lender shall pay to the Applicable Swing Line Lender its  Applicable Pro Rata Percentage thereof on demand of the Applicable 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 Effective Rate.  The Applicable  Administrative Agent will make such demand upon the request of the Applicable Swing  Line 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 Swing Line Lender.  The Applicable Swing Line  Lender shall be responsible for invoicing the Applicable Borrower for interest on the Swing Line  Loans.  Until each Applicable Lender funds its Loan or risk participation pursuant to this  Section 2.23 to refinance such Applicable Lender’s Applicable Pro Rata Percentage of any Swing  Line Loan, interest in respect of such Applicable Pro Rata Percentage shall be solely for the  account of the Applicable Swing Line Lender.  (f) Payments Directly to Swing Line Lender.  The Applicable Borrower shall  make all payments of principal and interest in respect of the Swing Line Loans directly to the  Applicable Swing Line Lender, and, if an AutoBorrow Agreement is in effect, in accordance with  the terms of such AutoBorrow Agreement.    (g) Discretionary Nature of the Swing Line Facility.  Notwithstanding any  terms to the contrary contained herein, the swing line facilities provided herein (i) are each an  uncommitted facility and the Swing Line Lenders may, but shall not be obligated to, make Swing  





 






  98  US-DOCS\125501258.12  Line Loans, and (ii) may be terminated at any time by the Applicable Swing Line Lender or the  Applicable Borrower upon written notice by the terminating party to the non-terminating party.  SECTION 2.24 Defaulting Lenders.  (a) Adjustments.  Notwithstanding anything to the contrary contained in this  Agreement, if any Revolving 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) such Defaulting Lender’s right to approve or disapprove any  amendment, waiver or consent with respect to this Agreement or any other Loan Document  shall be restricted as set forth in Section 9.08(b); and  (ii) any payment of principal, interest, fees or other amounts received  by the Applicable Administrative Agent for the account of such Defaulting Lender  (whether voluntary or mandatory, at maturity, pursuant to Article VII, or otherwise, or  received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.05),  shall be applied at such time or times as may be determined by the Applicable  Administrative Agent as follows:  (A) first, to the payment of any amounts owing by such  Defaulting Lender to the Applicable Administrative Agent hereunder;  (B) second, to the payment on a pro rata basis of any amounts  owing by such Defaulting Lender to the Issuing Banks and the Swing Line Lenders  hereunder;  (C) third, to Cash Collateralize the Issuing Banks’ Fronting  Exposure with respect to such Defaulting Lender in accordance with Section  2.21(k);  (D) fourth, as the Applicable Borrower may request (so long as  no Default or Event of Default exists), to the funding of any Loan in respect of  which such Defaulting Lender has failed to fund its portion thereof as required by  this Agreement, as determined by the Applicable Administrative Agent;  (E) fifth, if so determined by the Administrative Agent and the  applicable 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 Issuing  Banks’ future Fronting Exposure with respect to such Defaulting Lender with  respect to future Letters of Credit issued under this Agreement, in accordance with  Section 2.21(k);  (F) sixth, to the payment of any amounts owing to the Revolving  Lenders, the Applicable Issuing Bank or the Applicable Swing Line Lender as a  result of any judgment of a court of competent jurisdiction obtained by any  Revolving Lender or an Applicable Issuing Bank against such Defaulting Lender  





 






  99  US-DOCS\125501258.12  as a result of such Defaulting Lender’s breach of its obligations under this  Agreement;  (G) seventh, so long as no Default or Event of Default exists, to  the payment of any amounts owing to the Applicable Borrower as a result of any  judgment of a court of competent jurisdiction obtained by the Applicable Borrower  against such Defaulting Lender as a result of such Defaulting Lender’s breach of  its obligations under this Agreement; and  (H) eighth, to such Defaulting Lender or as otherwise directed  by a court of competent jurisdiction; provided that if (x) such payment is a payment  of the principal amount of any Revolving Credit Loans or L/C Disbursements in  respect of which that Defaulting Lender has not fully funded its appropriate share  and (y) such Revolving Credit Loans were made or the related Letters of Credit  were issued at a time when the conditions set forth in Section 4.01 were satisfied  or waived, such payment shall be applied solely to pay the Revolving Credit Loans  of, and L/C Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis  prior to being applied to the payment of any Revolving Credit Loans of, or L/C  Disbursements owed to, such Defaulting Lender until such time as all Loans and  funded and unfunded participations in Letters of Credit and Swing Line Loans are  held by the Lenders pro rata in accordance with the Revolving Commitments  without giving effect to Section 2.24(c).  Any payments, prepayments or other  amounts paid or payable to any Defaulting Lender that are applied (or held) to pay  amounts owed by a Defaulting Lender or to post cash collateral pursuant to this  Section 2.24(a)(ii) shall be deemed paid to and redirected by such Defaulting  Lender, and each Lender irrevocably consents hereto.  Any payments, prepayments or other amounts paid or payable to any Defaulting Lender  that are applied (or held) to pay amounts owed by such Defaulting Lender or to post cash  collateral pursuant to this Section 2.24(a)(ii) shall be deemed paid to and redirected by such  Defaulting Lender, and each Lender irrevocably consents hereto.  (b) Certain Fees.  (i) No Defaulting Lender shall be entitled to receive any  Commitment Fee pursuant to Section 2.05(a) for any period during which such Lender is a  Defaulting Lender (and, except as otherwise provided in Section 2.05(a), the Applicable Borrower  shall not be required to pay any such fee that otherwise would have been required to have been  paid to such Defaulting Lender).  (ii) Each Defaulting Lender shall be entitled to receive L/C Participation  Fees for any period during which that Lender is a Defaulting Lender only to the extent  allocable to its Applicable Pro Rata Percentage of the stated amount of Letters of Credit  for which it has provided cash collateral pursuant to Section 2.21(k).  (iii) With respect to any L/C Participation Fee not required to be paid to  any Defaulting Lender pursuant to clause (i) or (ii) above, the Applicable 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 L/C Exposure or  





 






  100  US-DOCS\125501258.12  participation in Swing Line Loans that has been reallocated to such Non-Defaulting Lender  pursuant to clause (iv) below, (y) pay to each Issuing Bank and Swing Line Lender, as  applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the  extent allocable to such Issuing Bank’s or Swing Line Lender’s Fronting Exposure to such  Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.  (c) Reallocation of Ratable Portions to Reduce Fronting Exposure.  During any  period in which there is a Defaulting Lender, solely for purposes of computing the amount of the  obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of  Credit and Swing Line Loans pursuant to Sections 2.21 and 2.23, the “U.S. Revolving Pro Rata  Percentage”, “Canadian Revolving Pro Rata Percentage” or “Australian Revolving Pro Rata  Percentage”, as applicable, of each non-Defaulting Lender shall be computed without giving effect  to the Revolving Commitment of such Defaulting Lender; provided, that (A) each such  reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting  Lender, no Default or Event of Default exists; and (B) the aggregate obligation of any non- Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line  Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitments of such  non-Defaulting Lender minus (2) the aggregate Revolving Credit Loans of such non-Defaulting  Lender.  (d) Cash Collateral, Repayment of Swing Line Loans.  If the reallocation  described in clause (c) above cannot, or can only partially, be effected, the applicable Borrower  shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first,  prepay Swing Line Loans in an amount equal to the applicable Swing Line Lender’s Fronting  Exposure and (y) second, cash collateralize the applicable Issuing Banks’ Fronting Exposure in  accordance with the procedures set forth in Section 2.21(k).  (e) Defaulting Lender Cure.  If the Applicable Borrower, the Applicable  Administrative Agent, the Applicable Swing Line Lenders and the Applicable Issuing Banks agree  in writing that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the  Applicable Administrative Agent will so notify the parties hereto, whereupon as of the effective  date specified in such notice and subject to any conditions set forth therein (which may include  arrangements with respect to any cash collateral), such Lender will, to the extent applicable,  purchase at par that portion of outstanding Revolving Credit Loans of the other Revolving Lenders  of the same Class or take such other actions as the Applicable Administrative Agent may determine  to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in  Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Revolving Lenders of  the same Class in accordance with their “U.S. Revolving Pro Rata Percentage”, “Canadian  Revolving Pro Rata Percentage” or “Australian Revolving Pro Rata Percentage”, as applicable,  (without giving effect to clause (a)(ii) above), 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 Applicable Borrower while such 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.  





 






  101  US-DOCS\125501258.12  (f) New Swing Line Loans/Letters of Credit.  So long as any Lender is a  Defaulting Lender, (i) the Applicable Swing Line Lender shall not be required to fund any Swing  Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such  Swing Line Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any  Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect  thereto.   (g) Termination of Defaulting Lender Revolving Commitment.  A Borrower  may terminate the unused amount of the Revolving Commitment of a Defaulting Lender upon not  less than three (3) Business Days’ prior notice to the Applicable Administrative Agent (which will  promptly notify the Revolving Lenders of the same Class thereof), provided that such termination  will not be deemed to be a waiver or release of any claim a Borrower, an Administrative Agent,  an Issuing Bank or any Lender may have against such Defaulting Lender.  SECTION 2.25 Incremental Revolving Credit Increase.    (a) At any time after the Closing Date, any Borrower may by written notice to  the Applicable Administrative Agent elect to request the establishment of one or more increases  in one or more of the Revolving Commitments (an “Incremental Revolving Commitment”) to make  incremental Revolving Credit Loans (any Revolving Credit Loans made pursuant to such  Incremental Revolving Commitments, the “Incremental Revolving Credit Increase”); provided  that, (1) the aggregate amount for all such Incremental Revolving Commitments shall not exceed  $50,000,000 and (2) the aggregate amount for each Incremental Revolving Commitment shall not  be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount  permitted pursuant to the foregoing clause (1).  Each such notice shall specify the date (each, an  “Increased Amount Date”) on which the Applicable Borrower proposes that any Incremental  Revolving Commitment shall be effective, which shall be a date not less than twenty (20) Business  Days after the date on which such notice is delivered to Administrative Agent.  The Applicable  Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or  any other person reasonably satisfactory to the Applicable Administrative Agent, the Applicable  Issuing Bank and the Applicable Swing Line Lender, if any, to provide an Incremental Revolving  Commitment (any such person that provides an Incremental Revolving Commitment, an  “Incremental Lender”).  Any Lender or any Incremental Lender offered or approached to provide  all or a portion of any Incremental Revolving Commitment may elect or decline, in its sole  discretion, to provide such Incremental Revolving Commitment.  Any Incremental Revolving  Commitment shall become effective as of such Increased Amount Date; provided that:  (A) no Default or Event of Default shall exist on such Increased  Amount Date before or after giving effect to (1) any Incremental Revolving  Commitment and (2) the making of any Incremental Revolving Credit Increase  pursuant thereto;  (B) the Applicable Borrower shall have delivered to the  Administrative Agent (which shall promptly make such information available to  the Lenders in accordance with its customary practice) a Compliance Certificate  demonstrating that the Parent Borrower will be in compliance on a pro forma basis  (using the criteria therefor described in Section 6.04(i)) with the Financial  





 






  102  US-DOCS\125501258.12  Covenants after giving effect to (1) any Incremental Revolving Commitment (and  assuming that the Revolving Commitments (including any Incremental Revolving  Commitments) are fully drawn), (2) the making of any Incremental Revolving  Credit Increase pursuant thereto and (3) any Permitted Acquisition or other  contemplated use of proceeds consummated in connection therewith;  (C) the proceeds of any Incremental Revolving Credit Increase  shall be used for ongoing working capital requirements and other general corporate  purposes of the Applicable Borrower and its Subsidiaries (including Permitted  Acquisitions);  (D) each Incremental Revolving Commitment (and the  Incremental Revolving Credit Increase made thereunder) shall constitute  Obligations of the Applicable Borrower and shall be secured and guaranteed with  the other Revolving Credit Loans of such Class on a pari passu basis;  (E) in the case of each Incremental Revolving Commitment (the  terms of which shall be set forth the relevant Lender Joinder Agreement):  (1) any Incremental Revolving Credit Increase made  pursuant to such Incremental Revolving Commitment shall mature on the  Maturity Date, shall bear interest at the rate applicable to the Revolving  Credit Loans and shall be subject to the same terms and conditions as the  Revolving Credit Loans; provided that the Incremental Lenders in respect  of any Incremental Revolving Commitment may receive upfront fees  determined by the Applicable Administrative Agent, the applicable  Incremental Lenders and the Applicable Borrower;   (2) the outstanding Revolving Credit Loans and  Applicable Pro Rata Percentages of Swing Line Loans and the aggregate  amount available to be drawn under all applicable Letters of Credit of the  applicable Class will be reallocated by the Applicable Administrative Agent  on the applicable Increased Amount Date among the Applicable Lenders  (including the Incremental Lenders providing such Incremental Revolving  Commitment) in accordance with their revised Applicable Pro Rata  Percentages (and the Revolving Lenders (including the Incremental Lenders  providing such Incremental Revolving Commitment) agree to make all  payments and adjustments necessary to effect such reallocation and the  Applicable Borrower shall pay any and all costs required pursuant to  Section 2.15 in connection with such reallocation as if such reallocation  were a repayment); and  (3) all of the other terms and conditions applicable to  such Incremental Revolving Commitment shall, except to the extent  otherwise provided in this Section 2.25, be identical to the terms and  conditions applicable to the U.S. Revolving Credit Facility, the Canadian  





 






  103  US-DOCS\125501258.12  Revolving Credit Facility or the Australian Revolving Credit Facility, as the  case may be;  (F) any Incremental Lender shall be entitled to the same voting  rights as the existing Revolving Lenders under the U.S. Revolving Credit Facility,  the Canadian Revolving Credit Facility or the Australian Revolving Credit Facility,  as the case may be, and any Loans or issuances of Letters of Credit or Bankers’  Acceptances made in connection with each Incremental Revolving Credit Increase  shall receive proceeds of prepayments on the same basis as the other Revolving  Credit Loans made hereunder;  (G) such Incremental Revolving Commitments shall be effected  pursuant to one or more Lender Joinder Agreements executed and delivered by the  Applicable Borrower, the Applicable Administrative Agent and the applicable  Incremental Lenders (which Lender Joinder Agreement may, without the consent  of any other Lenders, effect such amendments to this Agreement and  the other  Loan Documents as may be necessary or appropriate, in the opinion of the  Applicable Administrative Agent, to effect the provisions of this Section 2.25); and  (H) the Applicable Borrower shall deliver or cause to be  delivered any customary legal opinions or other documents (including, without  limitation, a resolution duly adopted by the board of directors (or equivalent  governing body) of each Loan Party authorizing such Incremental Loan) reasonably  requested by Applicable Administrative Agent in connection with any such  transaction.  (b) The Incremental Lenders shall be included in any determination of the  Required U.S. Lenders, Required Canadian Revolving Lenders, the Required Canadian Lenders,  the Required Canadian Revolving Lenders or the Required Australian Lenders, as the case may  be, and the Incremental Lenders will not constitute a separate voting class for any purposes under  this Agreement.  (c) On any Increased Amount Date on which any Incremental Revolving Credit  Increase becomes effective, subject to the foregoing terms and conditions, each Incremental  Lender with an Incremental Revolving Commitment shall become a Revolving Lender hereunder  with respect to such Incremental Revolving Commitment.  (d) The parties acknowledge and agree that any Incremental Revolving Credit  Increase established for use by the Australian Borrower may be structured so as to obtain an  exemption under section 128F of the Australian Tax Act (including by way of an issuance of loan  notes to the extent required).    SECTION 2.26 Benchmark Replacement.    (a) Benchmark Replacement.     (i) Notwithstanding anything to the contrary herein or in any other Loan  Document (and any Hedging Agreement shall be deemed not to be a “Loan Document” for  





 






  104  US-DOCS\125501258.12  purposes of this Section titled “Benchmark Replacement”), if a Benchmark Transition Event  or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have  occurred prior to the Reference Time in respect of any setting of the then-current  Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause  (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement  Date, such Benchmark Replacement will replace such Benchmark for all purposes  hereunder and under any Loan Document in respect of such Benchmark setting and  subsequent Benchmark settings without any amendment to, or further action or consent of  any other party to, this Agreement or any other Loan Document and (y) if a Benchmark  Replacement is determined in accordance with clause (3) of the definition of “Benchmark  Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will  replace such Benchmark for all purposes hereunder and under any Loan Document in  respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth  (5th) Business Day after the date notice of such Benchmark Replacement is provided to the  Lenders without any amendment to, or further action or consent of any other party to, this  Agreement or any other Loan Document so long as the Administrative Agent has not  received, by such time, written notice of objection to such Benchmark Replacement from  Lenders comprising the Required Lenders.  (ii) Notwithstanding anything to the contrary herein or in any other  Loan Document and subject to the proviso below in this paragraph, if a Term SOFR  Transition Event and its related Benchmark Replacement Date have occurred prior to the  Reference Time in respect of any setting of the then-current Benchmark, then Term SOFR  will replace the then-current Benchmark for all purposes hereunder or under any Loan  Document in respect of such Benchmark setting and subsequent Benchmark settings,  without any amendment to, or further action or consent of any other party to, this  Agreement or any other Loan Document; provided that this clause (ii) shall not be effective  unless the Administrative Agent has delivered to the Lenders and the Borrowers a Term  SOFR Notice.  (b) Benchmark Replacement Conforming Changes. In connection with  the implementation of a Benchmark Replacement (including, for the avoidance of doubt, in  connection with the occurrence of a Term SOFR Transition Event), the Administrative  Agent will have the right to make Benchmark Replacement Conforming Changes from time  to time and, notwithstanding anything to the contrary herein or in any other Loan Document,  any amendments implementing such Benchmark Replacement Conforming Changes will  become effective without any further action or consent of any other party to this Agreement  or any other Loan Document.    (c) Notices; Standards for Decisions and Determinations. The  Administrative Agent will promptly notify the Borrowers and the Lenders of (i) any occurrence  of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election,  as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any  Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming  Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause  (d) below and (v) the commencement or conclusion of any Benchmark Unavailability Period.   





 






  105  US-DOCS\125501258.12  Any determination, decision or election that may be made by the Administrative Agent or, if  applicable, any Lender (or group of Lenders) pursuant to this Section titled “Benchmark  Replacement,” including any determination with respect to a tenor, rate or adjustment or of  the occurrence or non-occurrence of an event, circumstance or date and any decision to take  or refrain from taking any action or any selection, will be conclusive and binding absent  manifest error and may be made in its or their sole discretion and without consent from any  other party to this Agreement or any other Loan Document, except, in each case, as expressly  required pursuant to this Section titled “Benchmark Replacement.”    (d) Unavailability of Tenor of Benchmark. Notwithstanding anything to  the contrary herein or in any other Loan Document, at any time (including in connection with  the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term  rate (including Term SOFR or USD LIBOR) and either (A) any tenor for such Benchmark is  not displayed on a screen or other information service that publishes such rate from time to  time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory  supervisor for the administrator of such Benchmark has provided a public statement or  publication of information announcing that any tenor for such Benchmark is or will be no  longer representative, then the Administrative Agent may modify the definition of “Interest  Period” for any Benchmark settings at or after such time to remove such unavailable or non- representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A)  is subsequently displayed on a screen or information service for a Benchmark (including a  Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is  or will no longer be representative for a Benchmark (including a Benchmark Replacement),  then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark  settings at or after such time to reinstate such previously removed tenor.    (e) Benchmark Unavailability Period. Upon the Borrowers’ receipt of notice  of the commencement of a Benchmark Unavailability Period, the Borrowers may revoke any  request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be  made, converted or continued during any Benchmark Unavailability Period and, failing that, the  Borrowers will be deemed to have converted any such request into a request for a Borrowing of  or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a  tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon  the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in  any determination of ABR.    (f) Certain Defined Terms.  As used in this Section titled “Benchmark  Replacement”:     “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest  calculated with reference to such Benchmark, as applicable, that is or may be used for  determining the length of an Interest Period pursuant to this Agreement as of such date and not  including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from  the definition of “Interest Period” pursuant to clause (d) of this Section titled “Benchmark  Replacement.”  





 






  106  US-DOCS\125501258.12  “Benchmark” means, initially, USD LIBOR; provided that if a Benchmark Transition  Event or an Early Opt-in Election or a Term SOFR Transition Event, as applicable, and its related  Benchmark Replacement Date have occurred with respect to USD LIBOR or the then-current  Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that  such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (a) of  this Section titled “Benchmark Replacement”;   “Benchmark Replacement” means:  (a) in the case of any Benchmark Transition Event or Early Opt-in Election, for any  Available Tenor, the first alternative set forth in the order below that can be determined by the  Administrative Agent for the applicable Benchmark Replacement Date:  (1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;  (2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark  Replacement Adjustment;  (3) the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrowers as the replacement for the then-current  Benchmark for the applicable Corresponding Tenor giving due consideration to (i)  any selection or recommendation of a replacement benchmark rate or the  mechanism for determining such a rate by the Relevant Governmental Body or (ii)  any evolving or then-prevailing market convention for determining a benchmark  rate as a replacement for the then-current Benchmark for U.S. dollar-denominated  syndicated credit facilities at such time and (b) the related Benchmark  Replacement Adjustment;  provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is  displayed on a screen or other information service that publishes such rate from time to time  as selected by the Administrative Agent in its reasonable discretion or   (b) in the case of a Term SOFR Transition Event, and the delivery of a Term SOFR  Notice, the sum of (x) Term SOFR and (y) the related Benchmark Replacement Adjustment.  If the Benchmark Replacement as determined pursuant to clause (a) (1), (2) or (3) or (b) above  would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for  the purposes of this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the  then- current Benchmark with an Unadjusted Benchmark Replacement for any applicable  Interest Period and Available Tenor for any setting of such Unadjusted Benchmark  Replacement:  (1) for purposes of clauses (a) (1) and (2) and clause (b) of the definition of  “Benchmark Replacement,” the first alternative set forth in the order below that can  be determined by the Administrative Agent:  (a) the spread adjustment, or method for calculating or determining such spread  





 






  107  US-DOCS\125501258.12  adjustment, (which may be a positive or negative value or zero) as of the  Reference Time such Benchmark Replacement is first set for such Interest  Period that has been selected or recommended by the Relevant Governmental  Body for the replacement of such Benchmark with the applicable Unadjusted  Benchmark Replacement for the applicable Corresponding Tenor;  (b) the spread adjustment (which may be a positive or negative value or zero) as  of the Reference Time such Benchmark Replacement is first set for such  Interest Period that would apply to the fallback rate for a derivative  transaction referencing the ISDA Definitions to be effective upon an index  cessation event with respect to such Benchmark for the applicable  Corresponding Tenor; and  (2) for purposes of clause (a) (3) of the definition of “Benchmark Replacement,” the  spread adjustment, or method for calculating or determining such spread  adjustment, (which may be a positive or negative value or zero) that has been  selected by the Administrative Agent and the Borrowers for the applicable  Corresponding Tenor giving due consideration to (i) any selection or  recommendation of a spread adjustment, or method for calculating or determining  such spread adjustment, for the replacement of such Benchmark with the  applicable Unadjusted Benchmark Replacement by the Relevant Governmental  Body on the applicable Benchmark Replacement Date or (ii) any evolving or then- prevailing market convention for determining a spread adjustment, or method for  calculating or determining such spread adjustment, for the replacement of such  Benchmark with the applicable Unadjusted Benchmark Replacement for U.S.  dollar- denominated syndicated credit facilities; provided that, in the case of clause  (1) above, such adjustment is displayed on a screen or other information service  that publishes such Benchmark Replacement Adjustment from time to time as  selected by the Administrative Agent in its reasonable discretion.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the  definition of “ABR,” the definition of “Business Day,” the definition of “Interest Period,” timing  and frequency of determining rates and making payments of interest, timing of borrowing requests  or prepayment, conversion or continuation notices, length of lookback periods, the applicability  of breakage provisions, and other technical, administrative or operational matters) that the  Administrative Agent decides may be appropriate in its reasonable discretion (in consultation with  the Parent Borrower) to reflect the adoption and implementation of such Benchmark Replacement  and to permit the administration thereof by the Administrative Agent in a manner substantially  consistent with market practice (or, if the Administrative Agent decides that adoption of any  portion of such market practice is not administratively feasible or if the Administrative Agent  determines that no market practice for the administration of such Benchmark Replacement exists,  in such other manner of administration as the Administrative Agent decides (in consultation with  the Parent Borrower) is reasonably necessary in connection with the administration of this  Agreement and the other Loan Documents.  “Benchmark Replacement Date” means the earliest to occur of the following events with  respect to the then-current Benchmark:  





 






  108  US-DOCS\125501258.12  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the  later of (a) the date of the public statement or publication of information referenced  therein and (b) the date on which the administrator of such Benchmark (or the published  component used in the calculation thereof) permanently or indefinitely ceases to provide  all Available Tenors of such Benchmark (or such component thereof);  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of  the public statement or publication of information referenced therein;   (3) in the case of a Term SOFR Transition Event, the date that is thirty days after the  Administrative Agent has provided the Term SOFR Notice to the Lenders and the  Borrowers pursuant to Section 2.26(a)(ii); or  (4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice  of such Early Opt-in Election is provided to the Lenders, so long as the Administrative  Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business  Day after the date notice of such Early Opt-in Election is provided to the Lenders, written  notice of objection to such Early Opt-in Election from Lenders comprising the Required  Lenders.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement  Date occurs on the same day as, but earlier than, the Reference Time in respect of any  determination, the Benchmark Replacement Date will be deemed to have occurred prior to the  Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be  deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon  the occurrence of the applicable event or events set forth therein with respect to all then-current  Available Tenors of such Benchmark (or the published component used in the calculation  thereof).  “Benchmark Transition Event” means the occurrence of one or more of the following  events with respect to the then-current Benchmark:  (1) a public statement or publication of information by or on behalf of the administrator  of such Benchmark (or the published component used in the calculation thereof)  announcing that such administrator has ceased or will cease to provide all Available  Tenors of such Benchmark (or such component thereof), permanently or indefinitely,  provided that, at the time of such statement or publication, there is no successor  administrator that will continue to provide any Available Tenor of such Benchmark  (or such component thereof);  (2) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation  thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve  Bank of New York, an insolvency official with jurisdiction over the administrator for  such Benchmark (or such component), a resolution authority with jurisdiction over the  administrator for such Benchmark (or such component) or a court or an entity with  similar insolvency or resolution authority over the administrator for such Benchmark (or  such component), which states that the administrator of such Benchmark (or such  component) has ceased or will cease to provide all Available Tenors of such Benchmark  





 






  109  US-DOCS\125501258.12  (or such component thereof) permanently or indefinitely, provided that, at the time of  such statement or publication, there is no successor administrator that will continue to  provide any Available Tenor of such Benchmark (or such component thereof); or  (3) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation  thereof) announcing that all Available Tenors of such Benchmark (or such component  thereof) are no longer representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have  occurred with respect to any Benchmark if a public statement or publication of information set  forth above has occurred with respect to each then-current Available Tenor of such Benchmark  (or the published component used in the calculation thereof).  “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time  that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred  if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all  purposes hereunder and under any Loan Document in accordance with this Section titled  “Benchmark Replacement” and (y) ending at the time that a Benchmark Replacement has replaced  the then-current Benchmark for all purposes hereunder and under any Loan Document in  accordance with this Section titled “Benchmark Replacement.”  “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either  a tenor (including overnight) or an interest payment period having approximately the same  length (disregarding business day adjustment) as such Available Tenor.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate  (which will include a lookback) being established by the Administrative Agent in accordance  with the conventions for this rate selected or recommended by the Relevant Governmental Body  for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the  Administrative Agent decides that any such convention is not administratively feasible for the  Administrative Agent, then the Administrative Agent may establish another convention in its  reasonable discretion.  “Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the  occurrence of:  (1) a notification by the Administrative Agent to (or the request by the Borrowers to the  Administrative Agent to notify) each of the other parties hereto that at least five currently  outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as  a result of amendment or as originally executed) a SOFR-based rate (including SOFR,  a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such  syndicated credit facilities are identified in such notice and are publicly available for  review), and  (2) the joint election by the Administrative Agent and the Borrowers to trigger a fallback  from USD LIBOR and the provision by the Administrative Agent of written notice of  such election to the Lenders.  





 






  110  US-DOCS\125501258.12  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially  (as of the execution of this Agreement, the modification, amendment or renewal of this  Agreement or otherwise) with respect to USD LIBOR.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International  Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented  from time to time, or any successor definitional booklet for interest rate derivatives published from  time to time by the International Swaps and Derivatives Association, Inc. or such successor  thereto.  “Reference Time” with respect to any setting of the then-current Benchmark means (1)  if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two London  banking days preceding the date of such setting, and (2) if such Benchmark is not USD LIBOR,  the time determined by the Administrative Agent in its reasonable discretion.  “Relevant Governmental Body” means the Board of Governors of the Federal Reserve  System or the Federal Reserve Bank of New York, or a committee officially endorsed or  convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank  of New York, or any successor thereto.  “SOFR” means, with respect to any Business Day, a rate per annum equal to the  secured overnight financing rate for such Business Day published by the SOFR  Administrator on the SOFR Administrator’s Website on the immediately succeeding  Business Day.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).  “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New  York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight  financing rate identified as such by the SOFR Administrator from time to time.  “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable  Reference Time, the forward-looking term rate based on SOFR that has been selected or  recommended by the Relevant Governmental Body.  “Term SOFR Notice” means a notification by the Administrative Agent to the Lenders  and the Borrowers of the occurrence of a Term SOFR Transition Event.  “Term SOFR Transition Event” means the determination by the Administrative Agent  that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, and is  determinable for each Available Tenor and (b) the administration of Term SOFR is  administratively feasible for the Administrative Agent.  “Unadjusted Benchmark Replacement” means the applicable Benchmark  Replacement excluding the related Benchmark Replacement Adjustment.  





 






  111  US-DOCS\125501258.12     “USD LIBOR” means the London interbank offered rate for U.S. dollars.  ARTICLE III    REPRESENTATIONS AND WARRANTIES  Each Borrower represents and warrants to the Agents, the Issuing Banks and each of the  Lenders that:  SECTION 3.01 Organization; Powers.  Each Borrower and each of its respective  Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the  jurisdiction of its organization, (b) has all requisite power and authority to own its property and  assets and to carry on its business as now conducted and as proposed to be conducted, (c) is  qualified to do business in, and is in good standing in, every jurisdiction where such qualification  is required, except where the failure so to qualify could not reasonably be expected to result in a  Material Adverse Effect, and (d) has the power and authority to execute, deliver and perform its  obligations under each of the Loan Documents and each other agreement or instrument  contemplated hereby or thereby to which it is or will be a party and, in the case of the Borrowers,  to borrow hereunder.  SECTION 3.02 Authorization.  The execution, delivery and performance by each Loan  Party of each of the Loan Documents to which it is a party and the consummation of the  Transactions (i) have been (or will have been on, prior to or substantially contemporaneously with  the Closing Date) duly authorized by all requisite organizational action on the part of such Loan  Party and (ii) do not and will not (x) violate (A) any provision of law, statute, rule or regulation,  (B) the terms of the organizational documents of any Loan Party, (C) any order, injunction, writ  or decree of any Governmental Authority or any binding and enforceable arbitral award to which  such Loan Party or its property is subject, or (D) any provision of any indenture or other instrument  in respect of any Material Indebtedness or other material agreement to which any Borrower or any  Subsidiary is a party or by which any of them or any of their property is or may be bound, (y) be  in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a  default under, or give rise to any right to accelerate or to require the prepayment, repurchase or  redemption of any obligation under any such indenture or other instrument in respect of Material  Indebtedness or other material agreement or (z) result in the creation or imposition of any Lien  upon or with respect to any property or assets now owned or hereafter acquired by any Borrower  or any Subsidiary (other than any Lien created hereunder or under the Security Documents).  SECTION 3.03 Enforceability.  This Agreement has been, and each other Loan  Document to which any Loan Party is a party, when executed and delivered by such Loan Party,  will have been, duly executed and delivered by the Borrowers and constitutes, and each other Loan  Document when executed and delivered by each Loan Party thereto will constitute, a legal, valid  and binding obligation of such Loan Party enforceable against such Loan Party in accordance with  its terms (subject to any necessary stamping and registration requirements, applicable bankruptcy,  reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and  subject, as to enforceability, to equitable principles of general application (regardless of whether  enforcement is sought in a proceeding in equity or at law)).  





 






  112  US-DOCS\125501258.12  SECTION 3.04 Governmental Approvals.  (a) No authorization, action, exemption,  consent or approval of, registration, notice or filing with or any other action by any Governmental  Authority is necessary or will be required in connection with the Loan Documents and the  consummation of the Transactions, except for (i) the filing of Uniform Commercial Code  financing statements, filing of financing statements at the applicable provincial or territorial  personal property security registries in Canada, filing of financing statements at the PPS Register,  other filings required to perfect Liens created under the Security Documents and filing for  Australian mortgage stamp duty payments, (ii)  those which will have been made or obtained and  be in full force and effect and (iii) actions by, and notices to or filings with, Governmental  Authorities (including, without limitation, the SEC) that may be required in the ordinary course of  business from time to time or that may be required to comply with the express requirements of the  Loan Documents (including, without limitation, to release existing Liens on the Collateral or to  comply with requirements to perfect, and/or maintain the perfection of, Liens created under the  Loan Documents).    SECTION 3.05 Financial Statements  As of the Closing Date, the audited consolidated  balance sheets and related consolidated statements of operations, comprehensive income, changes  in shareholder equity, and cash flows of the Parent Borrower, as of and for the year ended  December 31, 2020 are available on the website of the SEC at http://www.sec.gov or posted on  the Internet at http://www.civeo.com.  Such financial statements in each case present fairly, in all  material respects, the financial condition of the Parent Borrower, as of such date and for such  period. Such financial statements and the notes thereto, disclose all material liabilities, direct or  contingent, of the Parent Borrower, as applicable, as of the date thereof. Such financial statements  were prepared in accordance with GAAP.  SECTION 3.06 No Material Adverse Change.  Since December 31, 2020, there has  been no material adverse effect on the business, assets, operations or condition (financial or  otherwise) of the Borrowers and the Subsidiaries, taken as a whole.  SECTION 3.07 Title to Properties; Possession Under Leases and Licenses.  (a) Each  of the Borrowers and the Subsidiaries has good and indefeasible title to, or valid leases or licenses  to access, use and occupy the material properties and assets it requires for the conduct of its  business, except for minor defects in title that do not interfere with its ability to conduct its business  as currently conducted or to utilize such properties and assets for their intended purposes.  All such  material properties and assets are free and clear of Liens, other than Liens expressly permitted by  Section 6.02 or those registered by the Agents on behalf of the Secured Parties.  (b) Each of the Borrowers and the Subsidiaries has complied with all  obligations under all leases and licenses to access, use and occupy property to which it is a party  and all such leases and licenses are in full force and effect except where the failure to so comply  could not reasonably be expected to have a Material Adverse Effect.  Each of the Borrowers and  the Subsidiaries enjoys peaceful and undisturbed possession under all leases and licenses where  the failure could not reasonably be expected to have a Material Adverse Effect.  SECTION 3.08 Subsidiaries.  As of the date such schedule was most recently delivered,  Schedule 3.08 sets forth a list of all Subsidiaries and Special Purpose Business Entities and, as to  each such Subsidiary, the jurisdiction of formation, the outstanding Equity Interests therein and  





 






  113  US-DOCS\125501258.12  the percentage ownership interest of each class of such Equity Interests owned by the Parent  Borrower and its Subsidiaries therein.  As of the Closing Date, the Equity Interests indicated as  owned by the Parent Borrower and its Subsidiaries on Schedule 3.08 are owned by the Borrowers,  directly or indirectly, free and clear of all Liens (other than Liens permitted by Section 6.02).  SECTION 3.09 Litigation; Compliance with Laws.  (a)  Except as set forth on  Schedule 3.09, there are no actions, suits, proceedings, claims or disputes at law, in equity, in  arbitration, by or before any Governmental Authority now pending or, to the knowledge of any  Borrower, threatened or contemplated against a Borrower or any Subsidiary or any business,  property or rights of any such person (i) that involve any Loan Document or any of the  Transactions or (ii) as to which there is a reasonable possibility of an adverse determination and  that, if adversely determined, could reasonably be expected, individually or in the aggregate, to  result in a Material Adverse Effect.  (b) Since December 31, 2020, there has been no adverse change in the status or  financial effect on the Parent Borrower and the Subsidiaries of the matters disclosed on  Schedule 3.09 that, individually or in the aggregate, has resulted in, or materially increased the  likelihood of, a Material Adverse Effect.  (c) None of the Borrowers, any of the Subsidiaries or any of their respective  material properties or assets is in violation of, nor will the continued operation of their material  properties (including licensed properties) and assets as currently conducted violate, any law, rule  or regulation (including any zoning, building, Environmental Law, ordinance, code or approval or  any building permits), or is in default with respect to any judgment, writ, injunction, decree or  order of any Governmental Authority, in each case where such violation or default could,  individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.  SECTION 3.10 Agreements.  None of the Borrowers or any of the Subsidiaries is in  default in any manner under any provision of any indenture or other agreement or instrument,  where such default has resulted in, or could, either individually or in the aggregate, reasonably be  expected to result in a Material Adverse Effect.   SECTION 3.11 Federal Reserve Regulations.  (a) None of the Loan Parties is engaged  principally, or as one of its important activities, in the business of extending credit for the purpose  of buying or carrying Margin Stock.  (b) No part of the proceeds of any Loan or any Letter of Credit will be used,  whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or  carry Margin Stock or to extend credit to others for purpose of purchasing or carrying Margin  Stock or for any other purpose, in each case to the extent that such use of proceeds would result in  a violation of, or be inconsistent with, the provisions of the regulations of the Board, including  Regulations T, U or X.  SECTION 3.12 Investment Company Act.  Neither the Parent Borrower nor any  Subsidiary is or is required to be registered as an “investment company” as defined in, or subject  to regulation under, the Investment Company Act of 1940.  





 






  114  US-DOCS\125501258.12  SECTION 3.13 Use of Proceeds.  The Borrowers will use the proceeds of the Loans  and will request the issuance of Letters of Credit for general corporate purposes of the Parent  Borrower and its Subsidiaries.  SECTION 3.14 Tax  Matters.  Each of the Borrowers and the Subsidiaries has filed or  caused to be filed all federal, state, provincial, local and foreign Tax returns required to have been  filed by it and has paid or caused to be paid all Taxes due and payable by it and all assessments  received by it, except Taxes that are being contested in good faith by appropriate proceedings and  for which the Borrowers or such Subsidiary, as applicable, shall have set aside on its books  adequate reserves with respect thereto in accordance with GAAP or other applicable accounting  principles.  There is no proposed tax assessment against any Borrower or any Subsidiary thereof  that could reasonably be expected to have a Material Adverse Effect.  None of the Material  Subsidiaries on the Closing Date will be a U.S. Owned Subsidiary.  SECTION 3.15 No Material Misstatements.  No information, report, financial  statement, exhibit or schedule furnished by or on behalf of the Parent Borrower and the  Subsidiaries to an Agent or any Lender in connection with the negotiation of any Loan Document  or included therein or delivered pursuant thereto contained, contains or will contain any material  misstatement of fact or omitted, omits or will omit to state any material fact necessary to make the  statements therein, in the light of the circumstances under which they were, are or will be made,  not misleading; provided that to the extent any such information, report, financial statement,  exhibit or schedule was based upon or constitutes a forecast or projection, each of the Borrowers  represents only that it acted in good faith and utilized reasonable assumptions and due care in the  preparation of such information, report, financial statement, exhibit or schedule.  SECTION 3.16 Employee Benefit Plans.  (a) Each of the Borrowers that is subject to  ERISA and such Borrower’s ERISA Affiliates is in compliance in all material respects with the  applicable provisions of ERISA and the Code and the regulations and published interpretations  thereunder, except where such noncompliance could not reasonably be expected to result in a  Material Adverse Effect.  No ERISA Event has occurred or is reasonably expected to occur that,  when taken together with all other such ERISA Events, could reasonably be expected to result in  liability of any Borrower, as applicable, or any of its ERISA Affiliates that could reasonably be  expected to have a Material Adverse Effect.  Except as disclosed in Schedule 3.16(a), the present  value of all benefit liabilities under each Plan (based on those assumptions used for purposes of  Accounting Standards Codification at 715-20) did not, as of the last annual valuation preceding  the Closing Date, exceed the fair market value of the assets of such Plan.  (b) Schedule 3.16(b) sets forth all Canadian Benefit Plans (other than, for  greater certainty, universal plans created by and to which the Parent Borrower is obligated to  contribute by statute) and Canadian Pension Plans and Defined Benefit Plans as of the Closing  Date.  The Canadian Pension Plans are duly registered under the ITA and any other applicable  laws which require registration, have been administered in all material respects in accordance with  the ITA and such other applicable laws and no event has occurred which is reasonably likely to  cause the loss of such registered status.  All material obligations of the Parent Borrower and the  Canadian Subsidiaries (including fiduciary, funding, investment and administration obligations)  required to be performed in connection with the Canadian Pension Plans and the funding  agreements therefor have been performed on a timely basis.  There are no outstanding disputes  





 






  115  US-DOCS\125501258.12  concerning the assets of the Canadian Pension Plans or to the knowledge of the Parent Borrower,  the Canadian Benefit Plans.  No promises of benefit improvements under the Canadian Pension  Plans or the Canadian Benefit Plans have been made except where such improvement could not  reasonably be expected to have a Material Adverse Effect.  All contributions or premiums required  to be made or paid by the Parent Borrower and the Canadian Subsidiaries to the Canadian Pension  Plans, the Defined Benefit Plans or the Canadian Benefit Plans have been made on a timely basis  in accordance with the terms of such plans and all applicable laws. There have been no improper  withdrawals or applications of the assets of the Canadian Pension Plans and there have been no  improper withdrawals by the Parent Borrower under the Canadian Benefit Plans. None of the  Canadian Pension Plans contains a defined benefit provision (within the meaning of section  147.1(1) of the ITA). The obligations of the Parent Borrower and the Canadian Subsidiaries in  respect of the Defined Benefit Plans are limited to making fixed contributions to the Defined  Benefit Plans pursuant to the terms of the collective agreements entered into between them and  the unions representing their employees and, for greater certainty, the Parent Borrower and the  Canadian Subsidiaries have no obligation to administer, or fund any deficit in, any Defined Benefit  Plan.  (c) With respect to each scheme or arrangement mandated by a government  other than the United States or Canada (a “Foreign Government Scheme or Arrangement”) and  with respect to each employee benefit plan maintained or contributed to by any Loan Party or any  Subsidiary of any Loan Party that is not subject to United States or Canadian law (a “Foreign  Plan”):  (i) any employer and employee contributions required by law or by the  terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been  made, or, if applicable, accrued, in accordance with normal accounting practices, except  where the failure could not reasonably be expected to have a Material Adverse Effect;  (ii) the fair market value of the assets of each funded Foreign Plan, the  liability of each insurer for any Foreign Plan funded through insurance or the book reserve  established for any Foreign Plan, together with any accrued contributions, is sufficient to  procure or provide for the accrued benefit obligations, as of the date hereof, with respect  to all current and former participants in such Foreign Plan according to the actuarial  assumptions and valuations most recently used to account for such obligations in  accordance with applicable generally accepted accounting principles, except where the  failure could not reasonably be expected to have a Material Adverse Effect; and  (iii) each Foreign Plan required to be registered has been registered and  has been maintained in good standing with applicable regulatory authorities, except where  the failure could not reasonably be expected to have a Material Adverse Effect.  SECTION 3.17 Environmental Matters.  (a) Except as set forth in Schedule 3.17 and  except with respect to any other matters that, individually or in the aggregate, could not reasonably  be expected to result in a Material Adverse Effect, none of the Borrowers or any of the Subsidiaries  (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any  permit, license or other approval required under any Environmental Law necessary for the  ownership and operation of their respective properties and the conduct of their respective  





 






  116  US-DOCS\125501258.12  businesses as currently conducted, (ii) has become subject to any Environmental Liability, (iii) has  received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis  for any Environmental Liability.  (b) Since the Closing Date, there has been no change in the status of the matters  disclosed on Schedule 3.17 that, individually or in the aggregate, has resulted in, or materially  increased the likelihood of, a Material Adverse Effect.  SECTION 3.18 Insurance.  Each of the Borrowers and each Subsidiary is insured by  insurance providers that it reasonably considers to be financially sound (including captive  insurance companies, or through self-insurance), in such amounts, with such deductibles and  covering such risks and liabilities as are consistent with past practices and is in compliance with  the requirements to Section 5.02.  SECTION 3.19 Security Documents.  (a) Each Pledge Agreement is effective to create  in favor of the Applicable Collateral Agent, for the ratable benefit of the Secured Parties referred  to therein, a legal, valid and enforceable security interest in the Collateral (as defined in such  Pledge Agreement) and, when such Collateral (to the extent such Collateral constitutes an  instrument or investment property, as applicable, under the applicable Uniform Commercial Code,  PPSA (Alberta) or equivalent personal property security legislation of the applicable province or  territory or an investment instrument under the PPS Law) is delivered to such Collateral Agent  together with, in respect of any Collateral subject to the Australian Security Deed, such instruments  of transfer and stock powers endorsed in blank in respect of such Collateral and the registration of  the security interests arising from the Australian Security Deed on the PPS Register, such Pledge  Agreement shall constitute a fully perfected first priority Lien on, and security interest in, all right,  title and interest of the pledgors thereunder in such Collateral, in each case prior and superior in  right to any other person.  (b) Each of the Security Agreements is (subject to payment of any applicable  mortgage duty in relation to security over assets located in New South Wales, Australia) effective  to create in favor of the Applicable Collateral Agent, for the ratable benefit of the Secured Parties  referred to therein, a legal, valid and enforceable security interest in the Collateral (as defined in  such Security Agreement) and, with respect to each Security Agreement, when financing  statements in appropriate form are filed with the appropriate offices or Governmental Authority,  such Security Agreement shall constitute a fully perfected Lien on, and security interest in, all  right, title and interest of the grantors thereunder in such portion of the Collateral in which a  security interest may be perfected by the filing of a financing statement under the applicable  Uniform Commercial Code, PPSA (Alberta), PPS Law or equivalent personal property security  legislation of the applicable province or territory (other than the Intellectual Property, as defined  in the U.S. Security Agreement), in each case prior and superior in right to any other person, other  than with respect to Liens expressly permitted by Section 6.02.  SECTION 3.20 Intellectual Property.  The Parent Borrower and each of its  Subsidiaries own or are licensed or otherwise have the legal right to use all of the patents,  trademarks, service marks, trade names, copyrights, franchises, authorizations and other rights that  are reasonably necessary for the operation of their respective businesses, except where the failure  could not reasonably be expected to have a Material Adverse Effect.  





 






  117  US-DOCS\125501258.12  SECTION 3.21 Labor Matters.  As of the Closing Date, there are no strikes, lockouts  or slowdowns against the Parent Borrower or any Subsidiary pending or, to the knowledge of the  Borrowers, threatened.  The hours worked by and payments made to employees of the Borrowers  and the Subsidiaries have not been in violation of, to the extent applicable to such Borrower or  such Subsidiary, the Fair Labor Standards Act or any other applicable federal, state, provincial,  local or foreign law dealing with such matters, except where such violation, either individually or  in the aggregate, could not reasonably be expected to have a Material Adverse Effect.  All  payments due from any Borrower or any Subsidiary, or for which any claim may be made against  any Borrower or any Subsidiary, on account of wages and employee health and welfare insurance  and other benefits, have been paid or accrued as a liability on the books of such Borrower or such  Subsidiary, except where the failure to do the same, either individually or in the aggregate, could  not reasonably be expected to result in a Material Adverse Effect.  SECTION 3.22 Solvency.  Immediately following the making of each Loan and the  giving of each of the Guarantee Agreements and after giving effect to the application of the  proceeds of each Loan, the Parent Borrower and its subsidiaries on a consolidated basis will be  Solvent.  SECTION 3.23 Anti-Corruption Laws.  None of the Parent Borrower and its  subsidiaries nor, to the knowledge of the Loan Parties, any director, employee or officer acting on  behalf of any the Parent Borrower or any of its subsidiaries has used any corporate funds for any  unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;  made any direct or indirect unlawful payment to any foreign or domestic government official or  employee from corporate funds; or violated or is in violation of any provision of the Anti- Corruption Laws.  SECTION 3.24 Anti-Money Laundering Laws.  The operations of the Parent  Borrower and each subsidiary are and have been conducted at all times in compliance with Anti- Money Laundering Laws in all material respects and no action, suit or proceeding by or before any  court or Governmental Agency or any arbitrator involving the Parent Borrower or any of its  subsidiaries with respect to Anti-Money Laundering Laws is pending and no such actions, suits or  proceedings have been threatened.  SECTION 3.25 Foreign Assets Control Regulations, etc..  (a) The Parent Borrower  and its subsidiaries are in compliance with the FCPA and the Currency and Foreign Transactions  Reporting Act of 1970 and, (b) to the knowledge of the Loan Parties, no director, officer or  employee of any Loan Party or any of their subsidiaries is the target of any Sanctions Laws and  Regulations, in each case where such violation or sanctions could, individually or in the aggregate,  reasonably be expected to have a Material Adverse Effect.  ARTICLE IV    CONDITIONS TO CLOSING AND FUNDING  The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of  Credit hereunder are subject to the satisfaction of the following conditions:  





 






  118  US-DOCS\125501258.12  SECTION 4.01 Conditions to All Credit Events.  On the date of each Borrowing and  on the date of each issuance, amendment, extension or renewal of a Letter of Credit (each such  event being called a “Credit Event”):  (a) The Applicable Administrative Agent shall have received a notice of such  Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance  with Section 2.03) or, in the case of the issuance, amendment, extension or renewal of a Letter of  Credit, the Applicable Issuing Bank and the Applicable Administrative Agent shall have received  a notice requesting the issuance, amendment, extension or renewal of such Letter of Credit as  required by Section 2.21(b) or, in the case of a Swing Line Loan, the Applicable Swing Line  Lender and the Applicable Administrative Agent shall have received a notice requesting such  Swing Line Loan as required by Section 2.23.  (b) The representations and warranties set forth in Article III hereof and in each  other Loan Document shall be true and correct in all material respects (provided that to the extent  any representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to  “materiality”, such representation and warranty is true and correct in all respects) on and as of the  date of such Credit Event with the same effect as though made on and as of such date, except to  the extent such representations and warranties expressly relate to an earlier date, in which case  such representation and warranty is true and correct in all material respects (provided that to the  extent any such representation and warranty is qualified as to “Material Adverse Effect” or  otherwise as to “materiality”, such representation and warranty is true and correct in all respects)  as of such earlier date.  (c) Each Borrower and each other Loan Party shall be in compliance with all  the terms and provisions set forth herein and in each other Loan Document on its part to be  observed or performed, and at the time of and immediately after such Credit Event, no Event of  Default or Default shall have occurred and be continuing.  (d) Immediately after giving effect to such Borrowing, no mandatory  prepayment would be required under Section 2.12(d).  (e) After giving pro forma effect to such Credit Event, the Parent Borrower is  in compliance with the financial covenants described in Section 6.11 as of the most recently ended  four (4) quarter period for which financial statements are required to be delivered under Section  5.04(a) or 5.04(b) or for which comparable financial statements have been filed with the SEC as  if such Credit Event had occurred on the last day of such period.  Each Credit Event shall be deemed to constitute a representation and warranty by the  Borrowers on the date of such Credit Event as to the matters specified in paragraphs (b), (c), (d)  and (e) of this Section 4.01.  SECTION 4.02 Conditions to Closing.  On or before the Closing Date,   (a) the Administrative Agents shall have received, on behalf of themselves, the  Lenders and the Issuing Banks all documents necessary for the occurrence of the Closing Date,  including, without limitation:  





 






  119  US-DOCS\125501258.12  (i) this Agreement, executed and delivered by the Agents, the  Borrowers, the Lenders, and the Issuing Banks;  (ii) any Note requested by a Lender pursuant to Section 2.04 of this  Agreement payable to such requesting Lender;  (iii) a favorable written opinion of each of (1) Simpson Thacher &  Bartlett LLP, U.S. counsel for the Borrowers, (2) Dentons Canada LLP, Canadian counsel  to the Parent Borrower, and (3) Arnold Bloch Leibler, Australian counsel to the Secured  Parties, in each case (A) dated as of the Closing Date, (B) addressed to the Administrative  Agents, the Collateral Agents, the Issuing Banks and the Lenders, and (C) covering such  other matters relating to the Loan Documents in respect of the jurisdiction of the relevant  counsel as the Administrative Agents shall reasonably request, and the Borrowers hereby  request such counsel to deliver such opinions;  (iv) a certificate as to the good standing or, if applicable, tax status of  each Loan Party (other than an Australian Loan Party) or a certified copy of the certificate  incorporation of each Australian Loan Party as of a recent date, from the Secretary of State  or other relevant Governmental Authority of the state or jurisdiction of its organization;  (v) a certificate of a Responsible Officer or, in respect of an Australian  Loan Party, director or company secretary (or such other corporate officer satisfactory to  the Administrative Agent) of each Loan Party dated as of the Closing Date and certifying  (1) that attached thereto is a true and complete copy of the organizational documents of  each Loan Party as in effect on the Closing Date and at all times since a date prior to the  date of the resolutions described in clause (2) below, (2) that (A) in the case of a Loan Party  other than an Australian Loan Party, attached thereto is a true and complete copy of, or (B)  in the case of an Australian Loan Party, attached there is an extract of, resolutions duly  adopted by the Board of Directors (or persons performing similar functions) of such Loan  Party authorizing the Transactions to be entered into by such Loan Party and the execution,  delivery and performance of the Loan Documents to which such person is a party and, in  the case of the Borrowers, the borrowings hereunder, and that such resolutions have not  been modified, rescinded or amended and are in full force and effect, and (3) as to the  incumbency and specimen signature of each officer executing any Loan Document or any  other document delivered in connection herewith on behalf of such Loan Party;  (vi) a certificate, dated the Closing Date and signed by a Financial  Officer of the Parent Borrower, certifying (1) compliance with the conditions precedent set  forth in Section 4.01(b) and (c), and (2) in each case after giving pro forma effect (using  the criteria therefor described in Section 6.04(i)) to the initial Borrowing contemplated  hereunder and the other transactions contemplated hereby, that (A) the Parent Borrower  and its Subsidiaries, taken as a whole, will be Solvent on the Closing Date and (B) the  Parent Borrower  and its subsidiaries will be in pro forma compliance (using the criteria  therefor described in Section 6.04(i)) with Sections 6.10 and 6.11 as of Closing Date;  (vii) the U.S. Pledge Agreement duly executed by the parties thereto,  under which the U.S. Borrower and each Domestic Subsidiary of the U.S. Borrower (other  





 






  120  US-DOCS\125501258.12  than any Domestic Subsidiary that is a subsidiary of a Foreign Subsidiary) shall pledge to  the U.S. Collateral Agent for the ratable benefit of the Secured Parties, (i) all the  outstanding Equity Interests of each Material Subsidiary of the U.S. Borrower that is a  Domestic Subsidiary (other than any Domestic Subsidiary that is a subsidiary of a Foreign  Subsidiary or a Domestic Subsidiary that is a FSHCO) and (ii) 65% (and no more than  65%) of the total outstanding voting Equity Interests and 100% of the total outstanding  nonvoting Equity Interests (if any) of each Material Subsidiary that is (A) a Foreign  Subsidiary whose Equity Interests are directly owned by the U.S. Borrower or any  Domestic Subsidiary of the U.S. Borrower (other than any Domestic Subsidiary that is a  subsidiary of a Foreign Subsidiary) or (B) a FSHCO, together with certificates representing  such shares, if any, accompanied by instruments of transfer and stock powers endorsed in  blank, shall be in the actual possession of the U.S. Collateral Agent, and the delivery of  UCC-1 financing statements necessary to create a valid, legal and perfected first-priority  Lien on the Collateral described therein (subject to any Lien expressly permitted by Section  6.02);  (viii) the Canadian Pledge Agreement, duly executed by the parties  thereto, and all the outstanding Equity Interests of the Canadian Subsidiary Guarantors as  of the Closing Date shall have been duly and validly pledged thereunder to the Canadian  Collateral Agent for the ratable benefit of the Secured Parties, together with certificates, if  any, representing such Equity Interests, accompanied by instruments of transfer and stock  powers endorsed in blank, shall be in the actual possession of the Canadian Collateral  Agent and, if required, the delivery of the applicable financing statements registered at the  applicable personal property registry in Canada necessary to create a valid, legal and  perfected first-priority Lien on the Collateral described therein (subject to any Lien  expressly permitted by Section 6.02);  (ix) the U.S. Security Agreement and Canadian Security Agreement  duly executed by the Loan Parties party thereto and in respect of each of the U.S. Security  Agreement and Canadian Security Agreement, each document (including each financing  statement) required by law or reasonably requested by the Applicable Collateral Agents to  be filed, registered or in order to create in favor of the Applicable Collateral Agent for the  benefit of the Secured Parties a valid, legal and perfected first-priority Lien on the  Collateral (subject to any Lien expressly permitted by Section 6.02) described in such  agreement (which, for the avoidance of doubt, shall exclude any property or assets the  granting of a Lien on which would result in material adverse tax consequences to the U.S.  Borrower or any Subsidiary);  (x) the results of (i) a search of the Uniform Commercial Code filings  or (ii) searches of filings at the applicable provincial or territorial personal property security  registries in Canada, as applicable (made with respect to each of the Loan Parties in the  state (or other jurisdiction) within the U.S. or Canada in which such person is organized,  and the other jurisdictions in which Uniform Commercial Code filings (or equivalent PPSA  (Alberta) or equivalent personal property security legislation of applicable provinces or  territories in Canada) are to be made or amended pursuant to the preceding paragraph),  together with copies of the financing statements (or similar documents) disclosed by such  search, and accompanied by evidence satisfactory to the Collateral Agents that the Liens  





 






  121  US-DOCS\125501258.12  indicated in any such financing statement (or similar document) would be permitted under  Section 6.02 or have been or will be contemporaneously released or terminated on the  Closing Date;  (xi) (i) the U.S. Guarantee Agreement, duly executed by the parties  thereto, (ii) the Canadian Guarantee Agreement, duly executed by the parties thereto and  (iii) the Australian Guarantee Agreement duly executed by the parties thereto;  (xii) the Australian Security Documents duly executed by the parties  thereto, and all the outstanding Equity Interests of the Australian Subsidiary Guarantors as  of the Closing Date shall have been duly and validly pledged thereunder to the Australian  Collateral Agent for the ratable benefit of the Secured Parties, together with certificates, if  any, representing such Equity Interests, accompanied by instruments of transfer and stock  powers endorsed in blank, shall be in the actual possession of the Australian Collateral  Agent and, if required, the delivery of the applicable financing statements registered at the  applicable personal property registry in Australia necessary to create a valid, legal and  perfected first-priority Lien on the Collateral described therein (subject to any Lien  expressly permitted by Section 6.02);   (xiii) all documentation and other information that the Administrative  Agents, the Lead Arranger or the Lenders shall have requested in order to comply with  their respective obligations under applicable “know your customer” and anti-money  laundering rules and regulations, including the Patriot Act, in each case to the extent such  documentation and other information shall have been reasonably requested not less than  five (5) Business Days prior to the Closing Date; and  (xiv)  such other documents as Administrative Agent or special counsel  to Administrative Agent may reasonably request;  (b) the Administrative Agent shall have received (i) evidence satisfactory to the  Administrative Agent that all Indebtedness under the Existing Credit Agreement shall be  simultaneously terminated and all amounts thereunder shall be simultaneously repaid in full and  (ii) to the extent requested by the Administrative Agent, evidence that arrangements satisfactory  to the Administrative Agent shall have been made for the termination and release of guarantees,  Liens and security interests granted in connection with the Existing Credit Agreement in a form  reasonably satisfactory to the Administrative Agent;  (c) the Administrative Agents and the Lead Arranger shall have received all  Fees and other amounts due and payable on or prior to the Closing Date, including, without  limitation, (i) to the extent invoiced, reimbursement or payment of all out-of-pocket expenses  (including, without limitation, the reasonable fees, charges and disbursements of counsel for the  Agents) required to be reimbursed or paid by the Borrowers hereunder, under the Credit  Agreement or under any other Loan Document and (ii) all Fees and other amounts due and payable  under the Fee Letter;   (d) the representations and warranties set forth in Article III hereof and in each  other Loan Document shall be true and correct in all material respects (provided that to the extent  





 






  122  US-DOCS\125501258.12  any representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to  “materiality”, such representation and warranty is true and correct in all respects) on and as of the  date of such Credit Event with the same effect as though made on and as of such date, except to  the extent such representations and warranties expressly relate to an earlier date, in which case  such representation and warranty is true and correct in all material respects (provided that to the  extent any such representation and warranty is qualified as to “Material Adverse Effect” or  otherwise as to “materiality”, such representation and warranty is true and correct in all respects)  as of such earlier date;  (e) each Borrower and each other Loan Party shall be in compliance with all  the terms and provisions set forth herein and in each other Loan Document on its part to be  observed or performed, and at the time of and immediately after such Credit Event, no Event of  Default or Default shall have occurred and be continuing; and  (f) there must be at least U.S.$25,000,000 of the Revolving Commitments  unused and available (after giving effect to any Borrowings on the Closing Date).  ARTICLE V    AFFIRMATIVE COVENANTS  Each of the Borrowers covenants and agrees with each Lender that so long as this  Agreement shall remain in effect and until the Commitments have been terminated and the  principal of and interest on each Loan, all Fees and all other expenses or amounts payable under  any Loan Document shall have been paid in full and all Letters of Credit have been canceled or  have expired and all amounts drawn thereunder have been reimbursed in full, unless the Required  Lenders shall otherwise consent in writing, each of the Borrowers will, and will cause each of its  Subsidiaries to:  SECTION 5.01 Existence; Businesses and Properties.  (a) Do or cause to be done all  things necessary to preserve, renew and keep in full force and effect its legal existence and (to the  extent the concept is applicable in such jurisdiction) good standing under the legal requirements  of the jurisdiction of its formation, except as otherwise expressly permitted under Section 6.05,  except where failure to do so could not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.  (b) Qualify and remain qualified as a foreign entity in each jurisdiction in which  qualification is necessary in view of its business and operations or the ownership of its properties,  except where failure to do so could not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.  (c) Do or cause to be done all things necessary to obtain, preserve, renew,  extend, maintain and keep in full force and effect the rights, privileges, licenses, permits,  franchises, authorizations, patents, copyrights, trademarks and trade names material to the conduct  of its business, except where the failure to do so could not reasonably be expected to have a  Material Adverse Effect; maintain and operate such business in substantially the manner in which  it is presently conducted and operated; comply in all material respects with all applicable laws,  rules, regulations, decrees and orders of any Governmental Authority, whether now in effect or  





 






  123  US-DOCS\125501258.12  hereafter enacted, except where the failure do so could not reasonably be expected to have a  Material Adverse Effect; and at all times maintain and preserve all property material to the conduct  of such business and keep such property in good repair, working order and condition and from  time to time make, or cause to be made, all needful and proper repairs, renewals, additions,  improvements and replacements thereto necessary in order that the business carried on in  connection therewith may be properly conducted at all times, except where the failure to do so  could not reasonably be expected to have a Material Adverse Effect.  SECTION 5.02 Insurance.  (a)  Maintain insurance with insurance providers that it  reasonably considers to be financially sound (including captive insurance companies, or through  self-insurance), in such amounts, with such deductibles and covering such risks and liabilities as  are consistent with its past practices.  (b) (i) Cause all such policies (other than policies relating to public liability,  third party claims or workers’ compensation) covering any Collateral to be endorsed or otherwise  amended to (A) with respect to insurance policies covering U.S. Loan Parties, to include a  customary lender’s loss payable endorsement or name the Applicable Collateral Agent as loss  payee as their interests may appear, in form and substance reasonably satisfactory to the Collateral  Agents, (B) with respect to insurance policies covering the Australian Loan Parties to note the  interests of the Australian Collateral Agent and (C) with respect to insurance policies covering the  Canadian Loan Parties, name the Canadian Collateral Agent under a mortgage clause in a form  approved by the Insurance Bureau of Canada, in each case, which endorsement shall provide that,  from and after the Closing Date, if the insurance carrier shall have received written notice from a  Collateral Agent of the occurrence of an Event of Default, the insurance carrier shall pay all  proceeds otherwise payable to the applicable Loan Party under such policies directly to the  Applicable Collateral Agent; deliver original or certified copies of all such policies to the  Collateral Agents; cause each such policy to provide that it shall not be canceled, modified or not  renewed (1) by reason of nonpayment of premium upon not less than 10 days’ prior written notice  (or such shorter time as may be agreed by the Applicable Collateral Agent) thereof by the insurer  to the Applicable Administrative Agent and the Applicable Collateral Agent (giving such Agents  the right to cure defaults in the payment of premiums), or (2) for any other reason upon not less  than 30 days’ prior written notice thereof (or such shorter time as may be agreed by the Applicable  Collateral Agent) by the insurer to the Agents; deliver to the Applicable Administrative Agent and  the Applicable Collateral Agent, evidence of the insurance maintained pursuant to paragraph (a)  above; (ii) cause all liability insurance policies (A) with respect to insurance policies covering the  U.S. Loan Parties, to name the Collateral Agents as an additional insured, (B) with respect to  insurance policies covering the Australian Loan Parties, to note the interests of the Australian  Collateral Agent and (C) with respect to insurance policies covering the Canadian Loan Parties,  name the Canadian Collateral Agent under a mortgage clause in a form approved by the Insurance  Bureau of Canada.  (c) Within ten Business Days of the Closing Date (or such longer period as the  Administrative Agent may determine in its reasonable discretion), deliver to the Administrative  Agent an updated copy of, or an updated certificate as to coverage under, the insurance policies  required by this Section 5.02  





 






  124  US-DOCS\125501258.12  SECTION 5.03 Obligations and Taxes.  Pay its Indebtedness and other obligations  promptly and in accordance with their terms and pay and discharge promptly when due all Taxes,  assessments and governmental charges or levies imposed upon it or upon its income or profits or  in respect of its property, before the same shall become delinquent or in default, as well as all  lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a  Lien upon such properties or any part thereof; provided, however, that such payment and discharge  shall not be required with respect to any such obligation Tax, assessment, charge, levy or claim so  long as the validity or amount thereof shall be contested in good faith by appropriate proceedings  and applicable Borrower or Subsidiary shall have set aside on its books adequate reserves with  respect thereto in accordance with GAAP or other applicable accounting principles, and such  contest operates to suspend collection of the contested obligation, tax, assessment or charge and  enforcement of a Lien.  SECTION 5.04 Financial Statements, Reports, etc..  Furnish to the Administrative  Agent and, in the case of Section 5.04(f) or (g), the applicable Lender:  (a) within five Business Days after the date in each fiscal year on which the  Parent Borrower is required to file its Annual Report on Form 10-K with the SEC (or would be  required if the Parent Borrower is no longer required to file regular and periodic reports with the  SEC), in each case without giving effect to any extension thereof, the audited consolidated balance  sheet and related consolidated statements of operations, changes in shareholders’ equity,  comprehensive income and cash flows of the Parent Borrower, showing its consolidated financial  condition as of the close of such fiscal year and the results of its operations and the operations of  its consolidated subsidiaries during such year and setting forth in each case in comparative form  the figures for the previous fiscal year, audited by independent public accountants of recognized  national standing and accompanied by an opinion of such accountants (which 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) to the effect that such consolidated financial statements fairly present in  all material respects the financial condition and results of operations of the Parent Borrower and  its consolidated subsidiaries on a consolidated basis in accordance with GAAP;  (b) within five Business Days after each date in each fiscal year on which the  Parent Borrower is required to file a Quarterly Report on Form 10-Q with the SEC (or would be  required if the Parent Borrower is no longer required to file regular and periodic reports with the  SEC), in each case without giving effect to any extension thereof, the unaudited consolidated  balance sheets and related consolidated statements of operations and cash flows of the Parent  Borrower, showing its consolidated financial condition as of the close of such fiscal quarter and  the results of its operations and the operations of its consolidated subsidiaries during such fiscal  quarter and the then elapsed portion of the fiscal year and setting forth in each case in comparative  form the figures for the corresponding period in the previous fiscal year, all certified by one of its  Financial Officers as fairly presenting in all material respects the financial condition and results of  operations of the Parent Borrower and its consolidated subsidiaries on a consolidated basis in  accordance with GAAP, subject to normal year-end audit adjustments and the absence of  footnotes;  (c) concurrently with any delivery of financial statements under paragraph (a)  or (b) above, a certificate in the form of Exhibit F (a “Compliance Certificate”) of a Financial  





 






  125  US-DOCS\125501258.12  Officer (i) certifying that no Event of Default or Default has occurred or, if such an Event of  Default or Default has occurred, specifying the nature and extent thereof and any corrective action  taken or proposed to be taken with respect thereto and (ii) setting forth computations in detail  reasonably satisfactory to the Agents demonstrating compliance with the Financial Covenants;  (d) promptly upon receipt thereof, copies of any audit or other reports delivered  to the board of directors of the Parent Borrower (or the audit committee of such board) by an  independent registered public accounting firm in connection with such firm’s audit of the  consolidated financial statements of the Parent Borrower if such reports identify material  weaknesses in internal controls over financial reporting of the Parent Borrower;  (e) promptly after the same become publicly available, copies of all periodic  and other reports, proxy statements and other materials (other than filings under Section 16 of the  Securities Exchange Act of 1934) filed by the Parent Borrower or any Subsidiary with the SEC,  or any Governmental Authority succeeding to any or all of the functions of said Commission, or  with any national securities exchange, or distributed to its shareholders, as the case may be, and  all press releases;  (f) promptly, following a request by any Lender, all documentation and other  information that such Lender reasonably requests in order to comply with its ongoing obligations  under applicable “know your customer” and Anti-Money Laundering Laws, including the Patriot  Act;  (g) promptly, following a request by any Lender, an updated organizational  chart of the Parent Borrower and its subsidiaries; and  (h) promptly, from time to time, such other information regarding the  operations, business affairs and financial condition of the Borrowers or any Subsidiary, or  compliance with the terms of any Loan Document, as the Applicable Administrative Agent or any  Lender may reasonably request.  Documents required to be delivered pursuant to this Section 5.04 may be delivered  electronically and, in the case of Sections 5.04(a), (b) or (e) shall be deemed to have been delivered  if such documents, or one or more annual, quarterly or other reports or filings containing such  documents (including, in the case of certifications required pursuant to Section 5.04(b), the  certifications accompanying any such quarterly report pursuant to Section 302 of the Sarbanes- Oxley Act of 2002), (i) shall have been posted or provided a link to on the Parent Borrower’s  website on the Internet at http://www.civeo.com, (ii) shall be available on the website of the SEC  at http://www.sec.gov or (iii) shall have been posted on the Parent Borrower’s behalf on SyndTrak  or another website, if any, to which each Lender and the Administrative Agents have access  (whether a commercial, third-party website or whether sponsored by an Administrative Agent).   No Administrative Agent shall have an obligation to request the delivery or to maintain copies of  the documents referred to above, and in any event shall have no responsibility to monitor  compliance by the Parent Borrower with any such request for delivery, and each Lender shall be  solely responsible for requesting delivery to it or maintaining its copies of such documents.  





 






  126  US-DOCS\125501258.12  The Parent Borrower hereby acknowledges that (a) the Agents will make available to the  Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan  Parties hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on  SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may  be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information  with respect to any Loan Party or its securities) (each, a “Public Lender”).  If any Borrower  Materials are designated by the Loan Parties as “PRIVATE”, such Borrower Materials will not be  made available to that portion of the Platform designated “Public Investor,” which is intended to  contain only information that (x) prior to any public offering of securities by any Loan Party, is of  a type that would be contained in a customary offering circular for an offering of debt securities  made in reliance on Rule 144A under the Securities Act or (y) following any public offering of  securities by a Loan Party, is either publicly available or not material information (though it may  be sensitive and proprietary) with respect to such Loan Party or its securities for purposes of United  States Federal and State securities laws.  The Agents shall be entitled to treat any Borrower  Materials that are not marked “PRIVATE” or “CONFIDENTIAL” as not containing any material  non-public information with respect to the Loan Parties or any 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 9.16).  SECTION 5.05 Litigation and Other Notices.  Upon obtaining knowledge thereof,  furnish to the Administrative Agents prompt written notice of the following:  (a) any Event of Default or Default, specifying the nature and extent thereof  and the corrective action (if any) taken or proposed to be taken with respect thereto;  (b) the filing or commencement of any action, suit or proceeding, whether at  law or in equity or by or before any Governmental Authority, against a Borrower or any Subsidiary  thereof that could reasonably be expected to result in a Material Adverse Effect;  (c) the occurrence of any ERISA Event or analogous event with respect to a  Canadian Pension Plan, Defined Benefit Plan or Canadian Benefit Plan that, alone or together with  any other such events that have occurred, could reasonably be expected to result in a Material  Adverse Effect;   (d) a copy of any form of written notice, summons, material correspondence or  citation received from any Governmental Authority or any other person, (i) concerning material  violations or alleged violations of Environmental Laws, which seeks or threatens to impose  liability on the Parent Borrower or its Subsidiaries therefor, (ii) alleging liability for any material  action or omission on the part of the Parent Borrower or any of its Subsidiaries in connection with  any Release of Hazardous Material, (iii) providing any written notice of potential responsibility or  liability under any Environmental Law, or (iv) concerning the filing of a Lien other than a Lien  permitted by Section 6.02 upon, against or in connection with the Parent Borrower or any of its  Subsidiaries, or any of their leased or owned material property, wherever located, in each of cases  (i) through (iv) that, individually or in the aggregate, could reasonably be expected to result in a  liability (to the extent not covered by insurance) of the Parent Borrower or any of its Subsidiaries  in an aggregate amount exceeding $25,000,000; or  





 






  127  US-DOCS\125501258.12  (e) any development that has resulted in, or could reasonably be expected to  result in, a Material Adverse Effect.  SECTION 5.06 Information Regarding Collateral.  Furnish to the Administrative  Agent prompt (and in any event within 30 days after the occurrence thereof) written notice (a) of  any change in the legal name, corporate structure, jurisdiction of organization or formation or  organizational identification number of a Loan Party; and (b) if any material portion of the  Collateral is expropriated, damaged or destroyed.  SECTION 5.07 Maintaining Records; Access to Properties and Inspections.  Keep  proper books of record and account in which full, true and correct entries in conformity with GAAP  or other applicable accounting principles and all requirements of law are made of all dealings and  transactions in relation to its business and activities.  Each Loan Party will, and will cause each  Subsidiary to, permit any representatives designated by the Agents or any Lender to visit and  inspect the financial records and the properties of the Borrowers or any Subsidiary and to make  extracts from and copies of such financial records, and permit any representatives designated by  the Agents or any Lender to discuss the affairs, finances and condition of the Borrowers or any  Subsidiary with the officers thereof and independent accountants therefor, all at the expense of the  Parent Borrower and at such reasonable times during normal business hours and as often as may  be reasonably desired, upon reasonable advance notice to the applicable Loan Party or Subsidiary;  provided that the Loan Parties shall be responsible for such expenses not more than one (1) time  per year unless an Event of Default has occurred and is continuing, in which case the Loan Parties  shall be responsible for all such expenses.  SECTION 5.08 Use of Proceeds.  Use the proceeds of the Loans and request the  issuance of Letters of Credit only for the purposes set forth in Section 3.13.  SECTION 5.09 Further Assurances.  At its sole cost and expense,   (a) execute any and all further documents, financing statements, agreements  and instruments, and take all further action (including filing Uniform Commercial Code, financing  statements under the PPSA (Alberta) or equivalent personal property security legislation in  applicable provinces or territories in Canada, PPS Register and other financing statements) that  may be required under applicable law, or that any Agent may reasonably request, in order to  effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve,  protect and perfect the validity and first priority of the security interests created or intended to be  created by the Security Documents.  (b) Cause any subsequently acquired or organized Domestic Subsidiary that is  a Material Subsidiary (other than a Domestic Subsidiary that is (i) a Subsidiary of a U.S. Owned  Subsidiary or (ii) a FSHCO) or any Domestic Subsidiary that was not a Material Subsidiary that  subsequently becomes a Material Subsidiary (other than a Domestic Subsidiary that is (i) a  Subsidiary of a U.S. Owned Subsidiary or (ii) a FSHCO), to execute a supplement making it a  party to the U.S. Guarantee Agreement and each applicable U.S. Security Document in favor of  the Collateral Agent, in each case within thirty (30) days (or such longer period as may be agreed  to by the Administrative Agent) after such acquisition, organization or change in status.  





 






  128  US-DOCS\125501258.12  (c) Cause any subsequently acquired or organized Canadian Subsidiary that is  a Material Subsidiary or any Canadian Subsidiary that was not a Material Subsidiary that  subsequently becomes a Material Subsidiary to execute a supplement to the Canadian Guarantee  Agreement and each applicable Canadian Security Document, in each case within thirty (30) days  (or such longer period as may be agreed to by the Administrative Agent) after such acquisition,  organization or change in status.  (d) Cause any subsequently acquired or organized Australian Subsidiary that is  a Material Subsidiary or any Australian Subsidiary that was not a Material Subsidiary that  subsequently becomes a Material Subsidiary to execute a supplement to the Australian Guarantee  Agreement and a new Australian Security Document, in each case within thirty (30) days (or such  longer period as may be agreed to by the Administrative Agent) after such acquisition, organization  or change in status.  (e) From time to time, promptly secure the Obligations by pledging or creating,  or causing to be pledged or created, perfected security interests with respect to such of their  respective personal property located within the United States, Canada or Australia as the  Administrative Agent shall designate (it being understood that it is the intent of the parties that,  the U.S. Borrower and each Domestic Subsidiary (other than any Domestic Subsidiary that is a  subsidiary of a U.S. Owned Subsidiary) shall pledge substantially all of its material personal  property located in the United States (provided that 100% of the Equity Interests of Material  Subsidiaries that are Domestic Subsidiaries (other than a Domestic Subsidiary that is (i) a  subsidiary of a U.S. Owned Subsidiary or (ii) a FSHCO) and 65% (and no more than 65%) of the  total outstanding voting Equity Interests and 100% of the total outstanding nonvoting Equity  Interests (if any) of each Material Subsidiary that is (i) a Foreign Subsidiary whose Equity Interests  are directly owned by the U.S. Borrower or any Domestic Subsidiary (other than any Domestic  Subsidiary that is a subsidiary of a U.S. Owned Subsidiary) or (ii) a FSHCO shall be pledged in  support of the Obligations).  Such security interests and Liens will be created under the Security  Documents and other security agreements, instruments and documents in form and substance  reasonably satisfactory to the Collateral Agents, and the Borrowers shall deliver or cause to be  delivered to the Lenders all such instruments and documents (including legal opinions and lien  searches) as the Collateral Agents shall reasonably request to evidence compliance with this  Section.  The Borrowers agree to provide such evidence as the Collateral Agents shall reasonably  request as to the perfection and priority status of each such security interest and Lien.   Notwithstanding the foregoing, the parties agree that (i) recordings in the United States Patent and  Trademark Office, the United States Copyright Office, the Canadian Intellectual Property Office  and the PPS Register will not be required with respect to registered trademarks, trademark  applications and copyrights of any Loan Party and (ii) the collateral for the Facilities shall exclude  any property or assets the granting of a Lien on which would result in material adverse tax  consequences to the Parent Borrower or any Subsidiary.  (f) If, after the Closing Date, without duplication, the Parent Borrower acquires  or forms a Subsidiary or any Subsidiary that was not a Material Subsidiary subsequently becomes  a Material Subsidiary, such Subsidiary shall provide a guarantee and security with respect to the  Obligations of all the Borrowers in form and substance reasonably satisfactory to the Collateral  Agents, in each case within thirty (30) days (or such longer period as may be agreed to by the  Administrative Agent) after such acquisition or formation (provided, the limitations laid out in  





 






  129  US-DOCS\125501258.12  connection with the guarantee and security with respect to the Obligations of the U.S. Borrower in  the foregoing paragraphs shall apply mutatis mutandis with respect to any relevant Subsidiary  acquired or formed by the Parent Borrower after the Closing Date that is not specifically addressed  in such foregoing paragraphs).  (g) If, after the Closing Date, any of the Australian Borrower, the Canadian  Subsidiary Guarantors, the Australian Subsidiary Guarantors or any other U.S. Owned Subsidiary,  as applicable, ceases to be a “controlled foreign corporation” within the meaning of Section 957  of the Code which is owned by (i) the U.S. Borrower or (ii) a Subsidiary of the Parent Borrower  that is a U.S. Person, or a Domestic Subsidiary that was previously a FSHCO ceases to be a  FSHCO owned by a U.S. Owned Subsidiary (provided, in the case of a Domestic Subsidiary that  was both a FSHCO and owned by a U.S. Owned Subsidiary, such Domestic Subsidiary both ceases  to be a FSHCO and ceases to be owned by a U.S. Owned Subsidiary), such person shall provide a  guarantee and security with respect to the Obligations in form and substance reasonably  satisfactory to the Collateral Agents, in each case within thirty (30) days (or such longer period as  may be agreed to by the Administrative Agent) after such cessation.  (h) Notwithstanding anything to the contrary contained herein, this Section  5.09 shall not apply to limit or diminish any guarantee or security provided as of the Closing Date  by a Subsidiary with respect to the Obligations (including as a result of a change in the ownership  of such Subsidiary pursuant to a reorganization subsequent to the Closing Date or otherwise)  without the consent of the Administrative Agent (not to be unreasonably withheld or delayed).  SECTION 5.10 [Reserved].    ARTICLE VI    NEGATIVE COVENANTS  Each of the Borrowers covenants and agrees with each Lender that, so long as this  Agreement shall remain in effect and until the Commitments have been terminated and the  principal of and interest on each Loan, all Fees and all other expenses or amounts payable under  any Loan Document have been paid in full and all Letters of Credit have been canceled or have  expired and all amounts drawn thereunder have been reimbursed in full, unless the Required  Lenders shall otherwise consent in writing, no Borrower will, nor will it cause or permit any of its  Subsidiaries to:  SECTION 6.01 Indebtedness.  On or after the Closing Date, incur, create, assume or  permit to exist any Indebtedness, except:  (a) Indebtedness set forth in Schedule 6.01, and any Permitted Refinancing  Indebtedness thereof;  (b) the Obligations, including the Indebtedness created hereunder and under the  other Loan Documents;  





 






  130  US-DOCS\125501258.12  (c) intercompany Indebtedness of the Borrowers and the Subsidiaries to the  extent permitted by Sections 6.04(a), (f), (g), (k) and (l);  (d) Indebtedness under bid bonds, labor and materials payment bonds,  performance bonds and similar bonds or standby letters of credit or bank guarantees or with respect  to workers’ compensation claims, in each case incurred in the ordinary course of business;  (e) Indebtedness issued pursuant to a Qualified Offering and any Permitted  Refinancing Indebtedness thereof;  (f) Indebtedness of the Australian Borrower and guaranties thereunder by any  Subsidiary created under the Bilateral Agreement;  (g) secured Indebtedness of a Borrower or any Subsidiary and guarantees  thereof by any Subsidiary not otherwise permitted under this Section 6.01; provided that (i) the  Liens securing such Indebtedness are permitted under Section 6.02(j) and (ii) the aggregate  principal amount of such Indebtedness does not exceed $20,000,000 at any time outstanding;   (h) Indebtedness of a Borrower or any Subsidiary and guaranties thereunder by  any Subsidiary in an aggregate principal amount not to exceed $25,000,000 at any time  outstanding; and  (i) Indebtedness in connection with banking services and Hedging  Agreements, in each case, permitted hereunder.  SECTION 6.02 Liens.  On or after the Closing Date, create, incur, assume or permit to  exist any Lien on any property or assets (including stock or other securities of any person,  including any Subsidiary) now owned or hereafter acquired by it or on any income or revenues or  rights in respect of any thereof, except:  (a) Liens existing on the Closing Date and set forth in Schedule 6.02; provided  that such Liens shall secure only those obligations which they secure on the date hereof and  extensions, renewals and replacements thereof permitted hereunder;  (b) any Lien created under the Loan Documents;  (c) Liens for taxes not yet due or which are being contested in compliance with  Section 5.03;  (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or  other like Liens arising in the ordinary course of business and securing obligations that are not due  and payable or which are being contested in compliance with Section 5.03;  (e) Liens (other than any Lien imposed by ERISA), pledges and deposits made  in the ordinary course of business in compliance with workmen’s compensation, unemployment  insurance and other social security laws or regulations;  





 






  131  US-DOCS\125501258.12  (f) deposits to secure the performance of bids, trade contracts (other than for  Indebtedness), leases (including Capital Lease Obligations), statutory obligations, surety and  appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary  course of business;  (g) zoning restrictions, easements, rights-of-way, restrictions on use of real  property and other similar encumbrances incurred in the ordinary course of business which, in the  aggregate, are not substantial in amount and do not materially detract from the value of the property  subject thereto or interfere with the ordinary conduct of the business of the Borrowers or any of  the Subsidiaries;  (h) Liens arising out of judgments or awards in respect of which a Borrower or  any of the Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review in  respect of which there shall be secured a subsisting stay of execution pending such appeal or  proceedings; provided that the aggregate amount of all such judgments or awards (and any cash  and the fair market value of any property subject to such Liens) does not exceed U.S.$10,000,000  at any time outstanding;  (i) Liens securing Indebtedness permitted under Section 6.01(e) and any  Permitted Refinancing Indebtedness thereof; provided that such Liens are subject to a Customary  Junior Lien Intercreditor Agreement;  (j) purchase money security interests in real property, improvements thereto or  personal property owned or acquired (or, in the case of improvements, constructed) by the  Borrowers or any Subsidiary; provided that, with respect to such security interests in any of the  foregoing types of property acquired after the Closing Date, (i) such security interests secure  Indebtedness permitted by Section 6.01, (ii) such security interests are incurred, and the  Indebtedness secured thereby is created, within 90 days after such acquisition (or construction),  (iii) the Indebtedness secured thereby does not exceed 90% of the lesser of the cost or the fair  market value of such real property, improvements or personal property at the time of such  acquisition (or construction) and (iv) such security interests do not apply to any other property or  assets of the Borrowers or any Subsidiary;   (k) Liens on Equity Interests in a Special Purpose Business Entity incurred for  the purpose of providing independent financing for such Special Purpose Business Entity;  provided, however, that such Liens are non-recourse as to the Parent Borrower or any of its  Subsidiaries holding any Equity Interests in such Special Purpose Business Entity;  (l) Liens securing Indebtedness and not otherwise permitted under this Section  6.02; provided that the aggregate principal amount of all Indebtedness secured by such Liens does  not exceed $20,000,000 at any time outstanding; provided further that no Lien on any Collateral  of any Borrower or any of their Subsidiaries shall be permitted by this Section 6.02(l);  (m) with respect to the Australian Borrower or any Australian Subsidiary, Liens  arising in connection with a deemed security interest under Section 12(3) of the PPSA (Australia)  which do not secure payment or performance of any obligation;  





 






  132  US-DOCS\125501258.12  (n) with respect to the Australian Borrower or any Australian Subsidiary, Liens  arising solely by operation of the PPS Law in the proceeds of an asset which is the subject of a  Lien (including under any retention of title arrangement in the ordinary course of business) or any  commingled product or mass of which that asset becomes part, where the obligation secured by  that Lien is limited to the unpaid balance of the purchase money for the original asset and that  unpaid balance is not yet due;  (o) with respect to the Australian Borrower or any Australian Subsidiary, any  Lien over goods and products, or documents of title to goods and products (including under any  retention of title arrangement) each arising in the ordinary course of business where the Lien  secures only the acquisition cost, leasing cost or selling price (and other amounts incidental to  those amounts) of such goods and products;  (p) with respect to the Australian Borrower or any Australian Subsidiary, any  netting or set-off arrangement entered into by any such entity in the ordinary course of its banking  arrangements for the purposes of netting debit and credit balances; and  (q) with respect to the Australian Borrower or any Australian Subsidiary, any  payment or close out netting or set-off arrangement pursuant to any derivative or foreign exchange  transaction entered into by any such entity, but excluding any Liens under a credit support  arrangement.   SECTION 6.03 Sale and Lease-Back Transactions.  Enter into any arrangement,  directly or indirectly, with any person whereby it shall sell or transfer any property, real or  personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter  rent or lease such property or other property which it intends to use for substantially the same  purpose or purposes as the property being sold or transferred unless the Indebtedness or Liens  arising therefrom, if any, are permitted by Section 6.01 and 6.02, respectively.  SECTION 6.04 Investments, Loans and Advances.  Purchase, hold or acquire any  Equity Interests, evidences of indebtedness or other securities of, make or permit to exist any loans  or advances to, or make or permit to exist any investment or any other interest in, any other person  (referred to herein as an “Investment”), except:  (a) Investments set forth on Schedule 6.04;  (b) Permitted Investments;  (c) accounts receivable owing to the Borrowers or any of the Subsidiaries  arising from sales of inventory or the provision of services in the ordinary course of business;  (d) advances to directors, officers and employees of the Borrowers or any of  the Subsidiaries to meet expenses incurred by such directors, officers and employees in the  ordinary course of business, in an aggregate amount not to exceed U.S.$5,000,000 at any time  outstanding;  (e) securities of any customer of a Borrower or any Subsidiary received in lieu  of cash payment, if such Borrower reasonably deems such customer to be in a reorganization or  





 






  133  US-DOCS\125501258.12  unable to make a timely cash payment on Indebtedness of such customer owing to it, provided that  such Borrower or such Subsidiary, as the case may be, has paid no new consideration (other than  forgiveness of Indebtedness) therefor;  (f) Investments of a Loan Party in or to another Loan Party;  (g) Investments of a Loan Party or Subsidiary in or to a Special Purpose  Business Entity; provided that at the time of such transaction:  (i) both before and after giving effect thereto, no Event of Default or  Default shall have occurred and be continuing;   (ii) the Parent Borrower would be in compliance on a pro forma basis  with the Financial Covenants as of the most recently completed period of four consecutive  fiscal quarters ending prior to such transaction for which the financial statements required  by Section 5.04(a) or 5.04(b) have been delivered or for which comparable financial  statements have been filed with the SEC, after giving pro forma effect (using the criteria  therefor described in Section 6.04(i)) to such transaction and to any other event occurring  during or after such period as to which pro forma recalculation is appropriate (including  any Asset Sale and any other transaction described in Section 6.04(i) or Section 6.04(m)  occurring during or after such period) as if such transaction had occurred as of the first day  of such period; and  (iii) after giving effect to such acquisition, there must be at least  U.S.$25,000,000 of the Revolving Commitments unused and available;  (h) the Borrowers may enter into Hedging Agreements to the extent permitted  by Section 6.12;  (i) the Parent Borrower and its Subsidiaries may acquire all or substantially all  the assets of a person or line of business of such person, or Equity Interests of a person that would  become a wholly owned Subsidiary; provided that at the time of such transaction:  (i) both before and after giving effect thereto, no Event of Default or  Default shall have occurred and be continuing;   (ii) the Parent Borrower would be in compliance on a pro forma basis  with the Financial Covenants as of the most recently completed period of four consecutive  fiscal quarters ending prior to such transaction for which the financial statements required  by Section 5.04(a) or 5.04(b) have been delivered or for which comparable financial  statements have been filed with the SEC, after giving pro forma effect to such transaction  and to any other event occurring during or after such period as to which pro forma  recalculation is appropriate (including any Asset Sale and any other transaction described  in this Section 6.04(i) or Section 6.04(m) occurring during or after such period) as if such  transaction had occurred as of the first day of such period; and  (iii) after giving effect to such acquisition, there must be at least  U.S.$25,000,000 of the Revolving Commitments unused and available;   





 






  134  US-DOCS\125501258.12  provided, however that all pro forma calculations required to be made pursuant to this  Section 6.04(i) shall (A) other than adjustments pursuant to clause (a)(vi) of the definition of  EBITDA, include only those adjustments that would be permitted or required by Regulation S-X  under the Securities Act of 1933, as amended and (B) be certified to by a Financial Officer as  having been prepared in good faith based upon reasonable assumptions;  (j) Investments consisting of non-cash proceeds of Asset Sales;  (k) Investments by the Parent Borrower or an existing Subsidiary in or to the  Parent Borrower or an existing Subsidiary (but excluding, for the avoidance of doubt, Investments  in any Person that will become a Subsidiary upon the making of such Investment);  (l) other Investments, without duplication, in an aggregate amount (valued at  cost or outstanding principal amount, as the case may be) not greater than 7.5% of the Parent  Borrower’s Consolidated Net Worth calculated on the date of such Investment as of the most recent  fiscal quarter for which financial statements are available;  (m) the Parent Borrower and its Subsidiaries may acquire Equity Interests of a  person that would become a non-wholly owned Subsidiary (in each case referred to herein as the  “Non-Wholly Owned Entity”); provided that:  (i) both before and after giving effect thereto, no Event of Default or  Default shall have occurred and be continuing;  (ii) the Parent Borrower would (A) be in compliance with the covenants  set forth in Section 6.10 and (B) after giving effect to such acquisition, have a Total Net  Leverage Ratio less than or equal to the Total Net Leverage Ratio immediately prior to  such acquisition, in each case as of the most recently completed period of four consecutive  fiscal quarters ending prior to such transaction for which the financial statements required  by Section 5.04(a) or 5.04(b) have been delivered or for which comparable financial  statements have been filed with the SEC, after giving pro forma effect to such transaction  and to any other event occurring during or after such period as to which pro forma  recalculation is appropriate (including any Asset Sale and any other transaction described  in Section 6.04(i) or this Section 6.04(m) occurring during or after such period) as if such  transaction had occurred as of the first day of such period;  (iii) after giving effect to such acquisition, there must be at least  U.S.$25,000,000 of the Revolving Commitments unused and available;  (iv) after giving effect to such acquisition, the Parent Borrower shall  continue to own, directly or indirectly, beneficially and of record, a majority of the issued  and outstanding Equity Interests of such Non-Wholly Owned Entity unless otherwise  disposed of in accordance with Section 6.05;  (v) upon the consummation of such acquisition, the Non-Wholly  Owned Entity and any Borrower and/or Subsidiary that holds any Equity Interests in such  Non-Wholly Owned Entity shall have each complied with the requirements of Section 5.09  regardless of whether such Non-Wholly Owned Entity is a Material Subsidiary; and  





 






  135  US-DOCS\125501258.12  (vi) the aggregate amount of the consideration for all such acquisitions  made pursuant to this Section 6.04(m) after the Closing Date shall not exceed 10% of the  Parent Borrower’s Consolidated Net Worth calculated on the date of such acquisition as of  the most recent fiscal quarter for which financial statements are available;  provided, however that all pro forma calculations required to be made pursuant to this  Section 6.04(m) shall (A) other than adjustments pursuant to clause (a)(vi) of the definition of  EBITDA, include only those adjustments that would be permitted or required by Regulation S-X  under the Securities Act of 1933, as amended and (B) be certified to by a Financial Officer as  having been prepared in good faith based upon reasonable assumptions; and  (n) Investments in connection with banking services and Hedging Agreements,  in each case, permitted hereunder.  SECTION 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions.   (a) Merge, amalgamate or consolidate with or into any other person, or permit  any other person to merge, amalgamate or consolidate with or into it, or sell, transfer, lease or  otherwise dispose of (in one transaction or in a series of transactions) as part of any Asset Sale all  or substantially all of the assets of a Loan Party (whether now owned or hereafter acquired) or less  than all or substantially all of the Equity Interests of any Loan Party (in each case, whether now  owned or hereafter acquired), or liquidate or dissolve, except that (a) the Parent Borrower may  merge, amalgamate or consolidate with any person provided that (i) no Change in Control occurs,  (ii) immediately after giving effect to any such proposed transaction no Default or Event of Default  would exist, and (iii) the Parent Borrower is the surviving entity, (b) the Parent Borrower may  merge or amalgamate with any of its wholly owned Subsidiaries, provided that immediately after  giving effect to any such proposed transaction no Default would exist and the Parent Borrower is  the surviving entity, (c) any Subsidiary may merge into or consolidate with any other wholly  owned Subsidiary (or, in order to consummate a Permitted Acquisition, any other person) in a  transaction in which the surviving entity is a wholly owned Subsidiary and (except in the case of  Permitted Acquisitions) no person other than the Borrowers or a wholly owned Subsidiary receives  any consideration, provided that (i) other than with respect to any merger among the Parent  Borrower and one or more wholly owned Subsidiaries and/or among wholly owned Subsidiaries  of the Parent Borrower, the requirements of Section 6.04(i) are met with respect to such merger  described in this clause (c) and (ii) if any such merger described in this clause (c) shall involve a  Loan Party, the surviving entity of such merger shall be or become a Loan Party and (d) any  Subsidiary of the Parent Borrower may liquidate or dissolve if the Parent Borrower determines in  good faith that such liquidation or dissolution is in the best interests of the Parent Borrower and is  not materially disadvantageous to the Lenders.  (b) Engage in any Asset Sale not otherwise permitted under paragraph (a) above  unless (i) such consideration is at least equal to the fair market value of the assets being sold,  transferred, leased or disposed of, and (ii) the fair market value of all assets sold, transferred, leased  or disposed of pursuant to this paragraph (b) after the Closing Date shall not exceed 7.5% of  Consolidated Net Worth calculated on the date of incurrence as of the most recent fiscal quarter  for which financial statements are available in the aggregate.  





 






  136  US-DOCS\125501258.12  SECTION 6.06 Restricted Payments; Restrictive Agreements.  (a) Declare or make,  or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to  any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so;  provided, however, that (i) any Subsidiary may declare and pay dividends or make other  distributions ratably to its equity holders of a given class, (ii) so long as no Event of Default or  Default shall have occurred and be continuing or would result therefrom, the Parent Borrower may  repurchase its Equity Interests owned by employees of the Parent Borrower or the Subsidiaries or  make payments to employees of the Parent Borrower or the Subsidiaries upon termination of  employment in connection with the exercise of stock options, stock appreciation rights or similar  equity incentives or equity based incentives pursuant to management incentive plans or in  connection with the death or disability of such employees in an aggregate amount not to exceed  U.S.$10,000,000 in any fiscal year and (iii) so long as (A) no Event of Default or Default shall  have occurred and be continuing or result therefrom, (B) at least U.S.$40,000,000 of the Revolving  Commitments is unused and available after giving effect to such Restricted Payment, of which at  least $30,000,000 must be comprised of the Canadian Revolving Commitments and the U.S.  Revolving Commitments unused and available, in the aggregate)  and (C) the Parent Borrower  would have a Total Net Leverage Ratio less than 2.50:1.00 as of the most recently completed  period of four consecutive fiscal quarters ending prior to such transaction for which the financial  statements required by Section 5.04(a) or 5.04(b) have been delivered or for which comparable  financial statements have been filed with the SEC, after giving pro forma effect (using the criteria  therefor described in Section 6.04(i)) to such transaction and to any other event occurring during  or after such period as to which pro forma recalculation is appropriate as if such transaction had  occurred as of the first day of such period, the Parent Borrower may make Restricted Payments in  any amount.  (b) Enter into, incur or permit to exist any agreement or other arrangement that  prohibits, restricts or imposes any condition upon (i) the ability of the Parent Borrower or any  Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets in favor  of a Collateral Agent or any successor thereto hereunder or under any agreement that replaces or  refinances this Agreement, or (ii) the ability of any Subsidiary to pay dividends or other  distributions with respect to any of its Equity Interests or to make or repay loans or advances to  the Parent Borrower or any other Subsidiary or to Guarantee Indebtedness of the Parent Borrower  or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and  conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to  customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary  pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to  be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and  conditions imposed on any Foreign Subsidiary (other than any Canadian Subsidiary, the Australian  Borrower or any Australian Subsidiary) by the terms of any Indebtedness of such Foreign  Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to  restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by  this Agreement if such restrictions or conditions apply only to the property or assets securing such  Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and  other contracts restricting the assignment thereof and (F) the foregoing shall not apply to  restrictions and conditions imposed pursuant to the Facility Letter or other agreements for Banking  Services permitted hereunder.  





 






  137  US-DOCS\125501258.12  SECTION 6.07 Transactions with Affiliates.  Except for transactions by or among  Loan Parties and transactions expressly permitted under this Agreement, sell or transfer any  property or assets to, or purchase or acquire any property or assets from, or otherwise engage in  any other transactions with, any of its Affiliates, except that the Borrowers or any Subsidiary may  engage in any of the foregoing transactions in the ordinary course of business at prices and on  terms and conditions not less favorable to the Borrowers or such Subsidiary than could be obtained  on an arm’s-length basis from unrelated third parties.  SECTION 6.08 Business of Borrowers and Subsidiaries.  Engage at any time in any  business or business activity other than providing products and services to the energy industry,  accommodations and business activities reasonably incidental thereto.  SECTION 6.09 Other Indebtedness and Agreements.  (a)  Permit any waiver,  supplement, modification, amendment, termination or release of any indenture, instrument or  agreement pursuant to which any Material Indebtedness of a Borrower or any of the Subsidiaries  is outstanding if the effect of such waiver, supplement, modification, amendment, termination or  release would increase the interest rate thereon, shorten the final maturity or the average life thereof  or cause an Event of Default.  (b) Make any distribution, whether in cash, property, securities or a  combination thereof, other than regular scheduled payments of principal and interest as and when  due (to the extent not prohibited by applicable subordination provisions), in respect of, or pay, or  offer or commit to pay, or directly or indirectly (including pursuant to any Synthetic Purchase  Agreement) redeem, repurchase, retire or otherwise acquire for consideration, or set apart any sum  for the aforesaid purposes, any Subordinated Indebtedness, except (i) to the extent the Parent  Borrower could make a Restricted Payment pursuant to Section 6.06(a), (ii) any Loan Party shall  be entitled to pay any and all amounts owing to another Loan Party pursuant to any agreement  providing for intercompany indebtedness or (iii) to the extent any such Indebtedness is repaid with   the proceeds of Permitted Refinancing Indebtedness permitted under Section 6.01.  SECTION 6.10 Interest Coverage Ratio.  Commencing with the four fiscal quarter  period ending September 30, 2021, permit, as of the last day of any fiscal quarter, the Interest  Coverage Ratio for any period of four consecutive fiscal quarters of the Parent Borrower, in each  case taken as one accounting period, to be less than 3.0 to 1.0.  SECTION 6.11 Leverage Ratios.    (a) Maximum Total Net Leverage Ratio.  Commencing with the four fiscal quarter  period ending September 30, 2021, permit, as of the last day of any fiscal quarter, the Total Net  Leverage Ratio for any period of four consecutive fiscal quarters of the Parent Borrower, in each  case taken as one accounting period, to be greater than (A) if a Qualified Offering has been  consummated, 3.50:1.00 and (B) if a Qualified Offering has not been consummated:  Fiscal Quarter Ending Maximum Total Net Leverage Ratio  September 30, 2021 3.50:1.00  





 






  138  US-DOCS\125501258.12  December 31, 2021 and March 31,  2022  3.25:1.00  June 30, 2022 and thereafter  3.00:1.00  (b) Maximum Senior Secured Net Leverage Ratio.  Commencing with the first fiscal  quarter ending immediately after the issuance of a Qualified Offering, permit, as of the last day of  any fiscal quarter, the Senior Secured Net Leverage Ratio for any period of four consecutive fiscal  quarters of the Parent Borrower, in each case taken as one accounting period, to be greater than  2.00:1.00.  SECTION 6.12 Hedging Agreements.  Enter into any Hedging Agreement, other than  Hedging Agreements entered into in the ordinary course of business to hedge or mitigate risks to  which a Borrower or any Subsidiary is exposed in the conduct of its business or the management  of its liabilities.  SECTION 6.13 Pension Plans.  (a)  Terminate, in whole or in part, or initiate the  termination of, in whole or in part, any Canadian Pension Plan so as to result in any liability to the  Parent Borrower or its applicable Canadian Subsidiaries which could reasonably be expected to  have a Material Adverse Effect; (b) permit to exist any event or condition in respect of any  Canadian Pension Plan or Defined Benefit Plan which presents the risk of liability of the Parent  Borrower which could reasonably be expected to have a Material Adverse Effect; (c) enter into or  incur any obligation under any new Canadian Pension Plan or Canadian Benefit Plan or modify  any such existing plans or the terms of participation in any Defined Benefit Plan so as to increase  its obligations thereunder which could result in any liability to the Parent Borrower or any of its  Canadian Subsidiaries and which could reasonably be expected to have a Material Adverse Effect;  (d) permit their unfunded obligations and liabilities under Canadian Pension Plans or Defined  Benefit Plans to remain unfunded, other than in accordance with applicable law; (e) engage in any  transactions which result in a fine or penalty against the Parent Borrower in excess of  C$10,000,000 in respect of any Canadian Pension Plan, Defined Benefit Plan or Canadian Benefit  Plan which fine or penalty has not been paid within 30 days of final assessment unless (i) such fine  or penalty is being contested in good faith by appropriate proceedings, (ii) the Parent Borrower  has set aside on its books adequate reserves with respect thereto in accordance with GAAP and  (iii) such contest does not operate to suspend collection of the contested fine or penalty; or (f) fail  to make a required contribution under any Canadian Pension Plan, Defined Benefit Plan or  Canadian Benefit Plan which would result in the imposition of a Lien upon the assets of the Parent  Borrower or any of its Subsidiaries within 30 days after the date such payment becomes due, unless  such payment is being contested in compliance with the preceding clause (e) and there is no risk  of forfeiture, loss or subordination of the Secured Parties’ Liens on such assets.  SECTION 6.14 Amendment of the Organizational Documents.  Amend the limited  partnership agreement of any Subsidiary that is a limited partnership or otherwise take steps to  expressly provide that the units of such limited partnership are securities for the purposes of this  Securities Transfer Act (Alberta) without 30 days prior written notice to the Canadian Collateral  Agent.  





 






  139  US-DOCS\125501258.12  SECTION 6.15 Sanction Laws and Regulations.  (a) Use the proceeds of the facilities  under the Loan Documents, or lend, contribute or otherwise make available such proceeds to any  Borrower or any Subsidiary, joint venture partner or other person or entity for the purpose of (i)  funding any activities or business of or with any Designated Person, or in any country or territory  that at the time of such funding is, or whose government is, the subject of any sanctions under any  Sanctions Laws and Regulations, or (ii) causing a violation of any Sanctions Laws and Regulations  by any party to this Agreement.  (b) Pay any amount due pursuant under the Loan Documents with funds  obtained from transactions with or relating to Designated Persons or countries which are the  subject of sanctions under any Sanctions Laws and Regulations, including but not limited to, Iran,  Sudan, Cuba, and Syria, or with funds derived from any activity in violation of Anti-Money  Laundering Laws.  SECTION 6.16 Anti-Corruption Laws. Violate the laws or regulations described in  Section 3.23 in such a manner as to result in a Material Adverse Effect.  SECTION 6.17 Cross-Guarantee.  No Loan Party shall enter into a deed of cross- guarantee for the purposes of ASIC Class Order CO 98/1418 other than with Civeo Holdings  Company 1 Pty Limited and its subsidiaries.  ARTICLE VII    EVENTS OF DEFAULT  SECTION 7.01 Events of Default.  In case of the happening of any of the following  events (“Events of Default”):  (a) any representation or warranty made or deemed made in or in connection  with any Loan Document or the borrowings or issuances of Letters of Credit hereunder, or any  representation, warranty, statement or information contained in any report, certificate, financial  statement or other instrument furnished in connection with or pursuant to any Loan Document,  shall prove to have been false or misleading in any material respect when so made, deemed made  or furnished; provided that to the extent that any representation or warranty is qualified as to  “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty shall  prove to be incorrect in any respect when made or deemed to be made;  (b) default shall be made in the payment in the applicable currency of any  principal of any Loan or the reimbursement with respect to any L/C Disbursement when and as  the same shall become due and payable, whether at the due date thereof or at a date fixed for  prepayment thereof or by acceleration thereof or otherwise;  (c) default shall be made in the payment in the applicable currency of any  interest on any Loan or any Fee or L/C Disbursement or any other amount (other than an amount  referred to in (b) above) due under any Loan Document, when and as the same shall become due  and payable, and such default shall continue unremedied for a period of three Business Days;  





 






  140  US-DOCS\125501258.12  (d) default shall be made in the due observance or performance by a Borrower  or any Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.05(a),  5.08 or in Article VI;  (e) default shall be made in the due observance or performance by a Borrower  or any Subsidiary of any covenant, condition or agreement contained in any Loan Document (other  than those specified in Section 7.01(b), (c) or (d)) and such default shall continue unremedied for  a period of 30 days after the earlier of (i) notice thereof from any Agent or any Lender to the Parent  Borrower or (ii) any Responsible Officer of the Parent Borrower obtains actual knowledge thereof;  (f) (i) a Borrower or any Material Subsidiary shall fail to pay any principal or  interest, regardless of amount, due in respect of any Material Indebtedness, when and as the same  shall become due and payable, or (ii) any other event or condition occurs that results in any  Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with  or without the giving of notice, the lapse of time or both) the holder or holders of any Material  Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to  become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to  its scheduled maturity; provided that this clause (ii) shall not apply to secured Indebtedness that  becomes due as a result of the voluntary sale or transfer of the property or assets securing such  Indebtedness;  (g) an involuntary proceeding shall be commenced or an involuntary petition  shall be filed in a court of competent jurisdiction seeking (i) relief in respect of a Borrower or any  Material Subsidiary, or of a substantial part of the property or assets of a Borrower or any Material  Subsidiary, under any Insolvency Law, (ii) the appointment of a receiver, liquidator, provisional  liquidator, trustee, custodian, administrator, sequestrator, conservator or similar official for a  Borrower or any Material Subsidiary or for a substantial part of the property or assets of a Borrower  or any Material Subsidiary or (iii) the winding-up or liquidation of a Borrower or any Material  Subsidiary; and such proceeding or petition shall continue undismissed for 60 days or an order or  decree approving or ordering any of the foregoing shall be entered;  (h) a Borrower or any Material Subsidiary shall (i) if such Borrower or Material  Subsidiary is incorporated in Australia, (A) become or state that it is insolvent as defined in the  Australian Corporations Act, (B) become an insolvent under administration as defined in the  Australian Corporations Act, (C) fail under section 459F(1) of the Australian Corporations Act to  comply with a statutory demand, (D) have an administrator, receiver, receiver & manager,  liquidator or provisional liquidator or similar official appointed to, or take possession or control  of, a substantial part of the property or assets of such party or (E) enter into or become subject to  any arrangement or composition with one or more of its creditors or any assignment for the benefit  of one or more of its creditors or any re-organization, moratorium, deed of company arrangement  or other administration involving one or more of its creditors, (ii) voluntarily commence any  proceeding or file any petition seeking relief under any Insolvency Law, (iii) consent to the  institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of  any petition described in (g) above, (iv) apply for or consent to the appointment of a receiver,  trustee, custodian, administrator, sequestrator, conservator or similar official for a Borrower or any  Material Subsidiary or for a substantial part of the property or assets of a Borrower or any Material  Subsidiary, (v) file an answer admitting the material allegations of a petition filed against it under  





 






  141  US-DOCS\125501258.12  an Insolvency Law in any such proceeding, (vi) make a general assignment for the benefit of  creditors, (vii) become unable, admit in writing its inability or fail generally to pay its debts as they  become due or (viii) take any action for the purpose of effecting any of the foregoing;  (i) one or more judgments for the payment of money in an aggregate amount  in excess of U.S.$25,000,000 (to the extent not covered by insurance) shall be rendered against a  Borrower or any Material Subsidiary thereof and the same shall remain undischarged for a period  of 30 consecutive days during which execution shall not be effectively stayed, or any action shall  be legally taken by a judgment creditor to levy upon assets or properties of a Borrower or any  Material Subsidiary to enforce any such judgment;  (j) an ERISA Event shall have occurred that, in the opinion of the Required  Lenders, when taken together with all other such ERISA Events, could reasonably be expected to  result in liability of a Borrower and its ERISA Affiliates in an aggregate amount exceeding  U.S.$25,000,000;  (k) any Guarantee under any Guarantee Agreement for any reason shall cease  to be in full force and effect (other than in accordance with its terms), or any Guarantor shall deny  in writing that it has any further liability under its Guarantee Agreement (other than as a result of  the discharge of such Guarantor in accordance with the terms of the Loan Documents);  (l) any security interest purported to be created by any Security Document shall  cease to be, or shall be asserted by a Borrower or any other Loan Party not to be, a valid, perfected,  first priority (except as otherwise expressly provided in this Agreement or such Security  Document) security interest in the securities, assets or properties covered thereby having an  estimated market value in excess of U.S.$2,500,000, except to the extent that any such loss of  perfection or priority results from the failure of a Collateral Agent to maintain possession of  certificates representing securities pledged under a Pledge Agreement; or  (m) a Change in Control shall have occurred.  SECTION 7.02 Optional Acceleration of Maturity.  If any Event of Default (other  than an Event of Default pursuant to Section 7.01(g) or (h)) shall have occurred and be continuing,  then, and in any such event:  (a) the Administrative Agent (i) shall at the request, or may, with the consent,  of the Required Revolving Lenders, by notice to the Parent Borrower, declare the Revolving  Commitments and the obligation of each Revolving Lender and the Issuing Banks to make  extensions of credit hereunder, including making Loans and issuing Letters of Credit, to be  terminated, whereupon the same shall forthwith terminate, and/or (ii) shall at the request, or may,  with the consent, of the Required Lenders, by notice to the Parent Borrower, declare all principal,  interest, fees, reimbursements, indemnifications, and all other amounts payable under this  Agreement and the other Loan Documents to be forthwith due and payable, whereupon all such  amounts shall become and be forthwith due and payable in full, without notice of intent to demand,  demand, presentment for payment, notice of nonpayment, protest, notice of protest, grace, notice  of dishonor, notice of intent to accelerate, notice of acceleration, and all other notices, all of which  are hereby expressly waived by the Borrowers;  





 






  142  US-DOCS\125501258.12  (b) the Borrowers shall, on demand of any Administrative Agent at the request  or with the consent of the Required Revolving Lenders, Cash Collateralize the Letters of Credit in  accordance with Section 2.21(k); and  (c) the Collateral Agents shall at the request of, or may with the consent of, the  Required Lenders proceed to enforce their respective rights and remedies under the Security  Documents, this Agreement, and any other Loan Document for the ratable benefit of the Lenders  by appropriate proceedings.  SECTION 7.03 Automatic Acceleration of Maturity.  If any Event of Default pursuant  to Section 7.01(g) or (h) shall occur:  (a) (i) the Revolving Commitments and the obligation of each Revolving  Lender and the Issuing Bank to make extensions of credit hereunder, including making Loans and  issuing Letters of Credit, shall terminate, and (ii) all principal, interest, fees, reimbursements,  indemnifications, and all other amounts payable under this Agreement and the other Loan  Documents shall become and be forthwith due and payable in full, without notice of intent to  demand, demand, presentment for payment, notice of nonpayment, protest, notice of protest, grace,  notice of dishonor, notice of intent to accelerate, notice of acceleration, and all other notices, all of  which are hereby expressly waived by the Borrowers;  (b) the Borrowers shall Cash Collateralize the Letters of Credit in accordance  with Section 2.21(k); and  (c) the Collateral Agents shall at the request of, or may with the consent of, the  Required Lenders proceed to enforce its rights and remedies under the Security Documents, this  Agreement, and any other Loan Document for the ratable benefit of the Lenders by appropriate  proceedings.  SECTION 7.04 Non-exclusivity of Remedies.  No remedy conferred upon the Agents,  the Issuing Banks and the Lenders is intended to be exclusive of any other remedy, and each  remedy shall be cumulative of all other remedies existing by contract, at law, in equity, by statute  or otherwise.  SECTION 7.05 Application of Proceeds.  From and during the continuance of any  Event of Default, any monies or property actually received by an Agent pursuant to this Agreement  or any other Loan Document, the exercise of any rights or remedies under any Security Document  or any other agreement with any Loan Party which secures any of the Obligations, shall be applied  by the Applicable Administrative Agent or Applicable Collateral Agent in the following order:   (a) 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 Agents) payable to the Agents in their capacities as such;  (b) second, to payment of that portion of the Obligations constituting fees,  indemnities and other amounts (other than principal, interest and Issuing Bank Fees) payable to  the Lenders, the Issuing Banks and the Bilateral Lender (including fees, charges and disbursements  of counsel to the respective Lenders, the Issuing Banks and the Bilateral Lender arising under the  





 






  143  US-DOCS\125501258.12  Loan Documents and the Bilateral Agreement), ratably among them in proportion to the respective  amounts described in this clause Second payable to them;  (c) third, to payment of that portion of the Obligations constituting accrued and  unpaid Letter of Credit Fees and interest on the Loans, L/C Exposure and other Obligations arising  under the Loan Documents and the Bilateral Agreement, ratably among the Lenders, the Issuing  Banks and the Bilateral Agreement in proportion to the respective amounts described in this clause  Third payable to them;  (d) fourth, to the Applicable Administrative Agent for the account of the  Issuing Banks, to Cash Collateralize that portion of L/C Exposure comprised of the aggregate  undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the  Borrower pursuant to Section 7.03 (b);  (e) fifth, to payment of that portion of the Obligations constituting unpaid  principal of the Loans, L/C Exposure, Obligations then owing under Hedging Agreements entered  into with a counterparty that was a Lender (or an affiliate of a Lender) at the time such Hedging  Agreement (other than Excluded Swap Obligations), Banking Services Obligations and any other  Obligations, ratably among the Lenders, the Issuing Banks and the Bilateral Lender and, to the  extent applicable, their Affiliates in proportion to the respective amounts described in this clause  Fifth payable by them; and  (f) last, the balance, if any, after (i) the termination of all Commitments, (ii) the  cancellation or expiration of each Letter of Credit (except to the extent cash collateralized or  backstopped, in each case, in a manner agreed to by the Borrower and the applicable Issuing Bank  or as to which other arrangements satisfactory to the applicable Issuing Bank shall have been made)  and (iii) the payment in full in cash of all Loans and other amounts owing to any Lender, any  Agent, the Lead Arranger or the Bilateral Lender in respect of the Obligations (other than  contingent or indemnification obligations not then due), including obligations in respect of  Hedging Agreements and Banking Services Obligations, as the case may be, shall have been made  to the Borrower or as may be directed by any court of competent jurisdiction.  Amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit  pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as  they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have  either been fully drawn or expired, such remaining amount shall be applied to the other  Obligations, if any, in the order set forth above.  Notwithstanding the foregoing, Obligations arising under Hedging Agreements and  Banking Services Obligations shall be excluded from the application described above if the  Applicable Administrative Agent has not received written notice thereof, together with such  supporting documentation as such Administrative Agent may request, from the applicable Lender  or its Affiliate, as the case may be.  





 






  144  US-DOCS\125501258.12  ARTICLE VIII    THE ADMINISTRATIVE AGENTS, THE COLLATERAL AGENTS,  THE ISSUING BANKS AND THE SWING LINE LENDERS  SECTION 8.01 Appointment and Authority.  Each of the Lenders, the Swing Line  Lenders and the Issuing Banks hereby irrevocably appoints RBC to act on its behalf as the  Administrative Agent and the U.S. Collateral Agent hereunder and under the other Loan  Documents.  Each of the Lenders and the Issuing Banks hereby irrevocably appoints RBC to act  on its behalf as the Canadian Administrative Agent and Canadian Collateral Agent hereunder and  under the other Loan Documents.  Each of the Lenders and the Issuing Banks hereby irrevocably  appoints RBC Europe to act on its behalf as the Australian Administrative Agent and Australian  Collateral Agent hereunder and under the other Loan Documents.  Each of the Lenders, the Swing  Line Lenders and the Issuing Banks authorizes each Agent to take such actions on its behalf and  to exercise such powers as are delegated to such 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 Agents, the Lenders and the Issuing Bank, and no Loan Party shall  have rights as a third party beneficiary of any of such provisions.  Each of the Secured Parties  hereby acknowledges and confirms their agreement that the Collateral Agents are subject to certain  Security Documents as trustee for and on behalf of the Lenders or the terms of the declaration of  trust and other terms and conditions set forth in the applicable Security Documents.  SECTION 8.02 Rights as a Lender.  The person serving as an Agent or an Issuing Bank  or a Swing Line Lender 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 an Agent, an Issuing Bank  or a Swing Line Lender and the term “Lender” or “Lenders” shall, unless otherwise expressly  indicated or unless the context otherwise requires, include the person serving as an Agent, an  Issuing Bank or a Swing Line Lender hereunder in its individual capacity.  Such person and its  Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other  advisory capacity for and generally engage in any kind of business with any Borrower or any  Subsidiary or other Affiliate thereof as if such person were not an Agent, an Issuing Bank or a  Swing Line Lender hereunder and without any duty to account therefor to the Lenders.  SECTION 8.03 Exculpatory Provisions.  None of the Agents, Issuing Banks or the  Swing Line Lenders shall have any duties or obligations except those expressly set forth herein  and in the other Loan Documents. Without limiting the generality of the foregoing, none of the  Agents or the Issuing Banks:  (a) shall be subject to any fiduciary or other implied duties, regardless of  whether a Default has occurred and is continuing;  (b) shall 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 such Agent, Issuing Bank or Swing Line Lender 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  such Agent, Issuing Bank or Swing Line Lender shall not be required to take any action that, in its  





 






  145  US-DOCS\125501258.12  opinion or the opinion of its counsel, may expose such Agent, Issuing Bank or Swing Line Lender  to liability or that is contrary to any Loan Document or legal requirement; and  (c) shall, except as expressly set forth herein and in the other Loan Documents,  have any duty to disclose, and shall not be liable for the failure to disclose, any information relating  to the Parent Borrower or any of its Affiliates or Subsidiaries that is communicated to or obtained  by the person serving as Agent, Issuing Bank, Swing Line Lender or any of their respective  Affiliates in any capacity.  None of the Agents or the Issuing Banks shall be liable for any action taken or not taken  by it (i) with the consent or at the request of the Required Lenders (or such other number or  percentage of the Lenders as shall be necessary, or as such Agent or Issuing Bank shall believe in  good faith shall be necessary, under the circumstances as provided in Sections 9.08) or (ii) in the  absence of its own gross negligence or willful misconduct.  None of the Agents, the Issuing Banks  and the Swing Line Lenders shall be deemed to have knowledge of any Default unless and until  notice describing such Default is given to such Agent, Issuing Bank or Swing Line Lender by a  Borrower, a Loan Party, a Lender or an Issuing Bank.  None of the Agents, Issuing Banks or the Swing Line Lenders shall be responsible for or  have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or  in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate,  report or other document delivered hereunder or thereunder or in connection herewith or therewith,  (iii) the performance or observance of any of the covenants, agreements or other terms or  conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,  enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any  other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article  IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered  to such Agent, Issuing Bank or Swing Line Lender or satisfaction of any condition that expressly  refers to the matters described therein being acceptable or satisfactory to such Agent, Issuing Bank  or Swing Line Lender.  SECTION 8.04 Reliance by the Agents, the Issuing Banks and the Swing Line  Lenders.  Each of the Agents, Issuing Banks and the Swing Line Lenders shall be entitled to rely  upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent,  statement, instrument, document or other writing (including any electronic message, Internet or  intranet website posting or other distribution) believed by it to be genuine and to have been signed,  sent or otherwise authenticated by the proper person.  Each of the Agents, the Issuing Banks and  the Swing Line Lenders also may rely upon any statement made to it orally or by telephone and  believed by it to have been made by the proper person, and shall not incur any liability for relying  thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the  issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or  an Issuing Bank, an Agent may presume that such condition is satisfactory to such Lender or  Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or  Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. An Agent,  Issuing Bank or Swing Line Lender may consult with legal counsel (who may be counsel for a  Loan Party), independent accountants and other experts selected by it, and shall not be liable for  





 






  146  US-DOCS\125501258.12  any action taken or not taken by it in accordance with the advice of any such counsel, accountants  or experts.  SECTION 8.05 Delegation of Duties.  Each of the Agents 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 such Agent.  Each of the Agents and any of their  respective sub-agents 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 such 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 such Agent.  SECTION 8.06 Resignation of an Agent or a Swing Line Lender.    (a) An Agent may resign at any time by giving prior written notice thereof to  the Lenders and the Parent Borrower, such resignation to be effective upon the appointment of a  successor Agent or, if no successor Agent has been appointed, forty-five (45) days after the retiring  Agent gives notice of its intention to resign.  Upon any such resignation, the Required U.S. Lenders  shall have the right to appoint, on behalf of the Borrowers and the U.S. Lenders, a successor  Administrative Agent or U.S. Collateral Agent, which shall be a financial institution with an office  in New York City.  Upon any such resignation, the Required Canadian Lenders shall have the right  to appoint, on behalf of the Parent Borrower and the Lenders, a successor Canadian Administrative  Agent or Canadian Collateral Agent, which shall be a financial institution with an office in New  York City.  Upon any such resignation, the Required Australian Lenders shall have the right to  appoint, on behalf of the Australian Borrower and the Lenders, a successor Australian  Administrative Agent or Australian Collateral Agent, which shall be a financial institution with an  office in New York City.  If no successor Agent shall have been so appointed by the Applicable  Required Lenders within thirty (30) days after the resigning Agent’s giving notice of its intention  to resign, then the resigning Agent may appoint, on behalf of the Borrowers and the Lenders, a  successor Agent.  If either the Administrative Agent, the Canadian Administrative Agent or the  Australian Administrative Agent has resigned and no successor Agent has been appointed, the  Applicable Required Lenders may perform all the duties of such Agent hereunder and the  Borrowers shall make all payments in respect of the Obligations to the applicable Lender and for  all other purposes shall deal directly with the Required Lenders until such successor Agent shall  have been appointed as provided herein.  No successor Agent shall be deemed to be appointed  hereunder until such successor Agent has accepted the appointment or, in the case of a successor  U.S. Collateral Agent, Canadian Collateral Agent or Australian Collateral Agent, upon the  execution and filing or recording of such financing statements, or amendments thereto, and such  amendments or supplements to the Security Documents, and such other instruments or notices, as  may be necessary or desirable, or as the Applicable Required Lenders may reasonably request, in  order to continue the perfection of the Liens granted or purported to be granted by the Security  Documents.  Upon the acceptance of any appointment as Administrative Agent or Collateral Agent  hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become  vested with all the rights, powers, privileges and duties of the resigning Agent.  Upon the  effectiveness of the resignation of an Administrative Agent or Collateral Agent, the resigning  Agent shall be discharged from its duties and obligations hereunder and under the Loan  Documents.  After the effectiveness of the resignation of an Agent, the provisions of this Article  





 






  147  US-DOCS\125501258.12  VIII shall continue in effect for the benefit of such Agent in respect of any actions taken or omitted  to be taken by it while it was acting as an Agent hereunder and under the other Loan Documents.    (b) Any resignation by RBC as Administrative Agent pursuant to this Section  shall also constitute its resignation as an Issuing Bank under the U.S. Revolving Credit Facility  and as the U.S. Swing Line Lender.  Any resignation by RBC as Canadian Administrative Agent  pursuant to this Section shall also constitute its resignation as an Issuing Bank under the Canadian  Revolving Credit Facility and as the Canadian Swing Line Lender.  Any resignation by RBC  Europe as Australian Administrative Agent pursuant to this Section shall also constitute its  resignation as an Issuing Bank under the Australian Revolving Credit Facility.  Upon the  acceptance of a successor’s appointment as the Administrative Agent, Canadian Administrative  Agent or Australian Administrative Agent hereunder, (a) such successor shall succeed to and  become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and,  in the case of the Administrative Agent or Canadian Administrative Agent, the retiring Swing Line  Lender, (b) the retiring Issuing Bank and, in the case of the Administrative Agent or Canadian  Administrative Agent, the retiring Swing Line Lender, shall be discharged from all of their  respective duties and obligations hereunder or under the other Loan Documents, and (c) the  successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any,  outstanding at the time of such succession or make other arrangement satisfactory to the retiring  Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such  Letters of Credit.  (c) The U.S. Swing Line Lender may resign at any time by giving prior written  notice thereof to the Administrative Agent and the U.S. Borrower, such resignation to be effective  upon the appointment of a successor U.S. Swing Line Lender or, if no successor U.S. Swing Line  Lender has been appointed, forty-five (45) days after the retiring U.S. Swing Line Lender gives  notice of its intention to resign.  Upon any such resignation, the U.S. Borrowers shall have the  right to appoint a successor U.S. Swing Line Lender.  The Canadian Swing Line Lender may resign  at any time by giving prior written notice thereof to the Canadian Administrative Agent and the  Parent Borrower, such resignation to be effective upon the appointment of a successor Canadian  Swing Line Lender or, if no successor Canadian Swing Line Lender has been appointed, forty-five  (45) days after the retiring Canadian Swing Line Lender gives notice of its intention to resign.   Upon any such resignation, the Parent Borrower shall have the right to appoint a successor  Canadian Swing Line Lender.  No Swing Line Lender shall be deemed to be appointed hereunder  until such successor Swing Line Lender has accepted the appointment.  Upon the acceptance of  any appointment as Swing Line Lender hereunder by a successor Swing Line Lender, such  successor Swing Line Lender shall thereupon succeed to and become vested with all the rights,  powers, privileges and duties of the resigning Swing Line Lender.  Upon the effectiveness of the  resignation of a Swing Line Lender, the resigning Swing Line Lender shall be discharged from its  duties and obligations hereunder and under the Loan Documents.  After the effectiveness of the  resignation of a Swing Line Lender, the provisions of this Article VIII shall continue in effect for  the benefit of such Swing Line Lender in respect of any actions taken or omitted to be taken by it  while it was acting as a Swing Line Lender hereunder and under the other Loan Documents.  SECTION 8.07 Non-Reliance on Agents and Other Lenders; Certain  Acknowledgments.    





 






  148  US-DOCS\125501258.12  (a) Each Lender and Issuing Bank acknowledges that it has, independently and  without reliance upon any 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 Issuing Bank also acknowledges that it  will, independently and without reliance upon any 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.  In this regard, each party hereto acknowledges that (i) Latham & Watkins  LLP is acting in this transaction as special counsel to the Administrative Agent and U.S. Collateral  Agent only, (ii) Borden Ladner Gervais LLP is acting in this transaction as special counsel to the  Canadian Administrative Agent and Canadian Collateral Agent only and (iii) Arnold Bloch Leibler  is acting in this transaction as special counsel to the Australian Administrative Agent and  Australian Collateral Agent only.  Each other party hereto will consult with its own legal counsel  to the extent that it deems necessary in connection with the Loan Documents and the matters  contemplated therein.  (b) Each Lender shall be deemed by delivering its signature page to this  Agreement and making any Loan on the Closing Date to have consented to, approved or accepted  each Loan Document and each other document or other matter referred to in Section 4.01, 4.02 or  4.03 required to be consented to or approved by or acceptable or satisfactory to the Agents, the  Lead Arranger or the Lenders and to have been satisfied with the satisfaction of all other conditions  precedent required to be satisfied under Section 4.01, 4.02 or 4.03.  SECTION 8.08 Indemnification.  The Lenders severally agree to indemnify upon  demand the Agents, the Issuing Banks, the Swing Line Lenders and each Related Party of any of  the foregoing (to the extent not reimbursed by the Loan Parties), according to their respective  ratable shares, and hold harmless such Indemnitee from and against any and all Indemnified  Liabilities in all cases, whether or not caused by or arising, in whole or in part, out of the negligence  of any Related Party; provided, however, that no Lender shall be liable for (a) the payment to any  Indemnitee for any portion of such Indemnified Liabilities to the extent determined in a final, non- appealable judgment by a court of competent jurisdiction to have resulted from such Indemnitee’s  own gross negligence or willful misconduct and (b) claims made or legal proceedings commenced  against such Indemnitee by any security holder or creditor thereof arising out of and based on  rights afforded any such security holder or creditor solely in its capacity as such; provided further,  however, that no action taken in accordance with the directions of the Applicable Required Lenders  shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section.   Without limitation of the foregoing, each Lender agrees to reimburse the Agents, the Issuing  Banks, the Swing Line Lenders and each Related Party promptly upon demand for its ratable share  of any out-of-pocket expenses (including all fees, expenses and disbursements of any law firm or  other external counsel) incurred by an Agent, an Issuing Bank or a Swing Line Lender in  connection with the preparation, execution, delivery, administration, modification, amendment, or  enforcement (whether through negotiations, legal proceedings, or otherwise) of, or legal advice in  respect of rights or responsibilities under, this Agreement or any other Loan Document, to the  extent that such Agent, Issuing Bank or Swing Line Lender is not reimbursed for such by the Loan  Parties.  The undertaking in this Section shall survive termination of the Commitments, the  





 






  149  US-DOCS\125501258.12  payment of all other Obligations and the resignation of such Agent, Issuing Bank or Swing Line  Lender.  SECTION 8.09 Collateral and Guaranty Matters.  (a) Each Lender (as a Lender and in its capacity as a potential provider of  Banking Services, as a potential counterparty to a Hedging Agreement or, in the case of the  Bilateral Lender, as lender under the Bilateral Agreement) and each other Secured Party (by their  acceptance of the benefits of any Lien encumbering Collateral) acknowledges and agrees that the  Collateral Agents have entered into the Security Documents on behalf of itself and the Secured  Parties, and the Secured Parties hereby agree to be bound by the terms of such Security Documents,  acknowledge receipt of copies of such Security Documents and consent to the rights, powers,  remedies, indemnities and exculpations given to such Collateral Agent thereunder.  All rights,  powers and remedies available to the Collateral Agents and the Secured Parties with respect to the  Collateral, or otherwise pursuant to the Security Documents, shall be subject to the provisions of  such Security Documents.    (b) Each Lender (as a Lender and in its capacity as a potential provider of  Banking Services, as a potential counterparty to a Hedging Agreement or, in the case of the  Bilateral Lender, as lender under the Bilateral Agreement) and each other Secured Party (by their  acceptance of the benefits of any Lien encumbering Collateral) hereby authorizes the Collateral  Agents, at their option and in their discretion, without the necessity of any notice to or further  consent from the Secured Parties:  (i) to release any Lien on any property granted to or held by the  Collateral Agent under any Security Document (i) if expressly permitted by Section 6.03,  Section 6.05, Section 9.20 or any Security Document or (ii) subject to Section 9.08, if  approved, authorized or ratified in writing by the Required Lenders;  (ii) to take any actions with respect to any Collateral or Security  Documents which may be necessary to perfect and maintain a first priority security interest  in and Liens upon the Collateral granted pursuant to the Security Documents;   (iii) to take any action in exigent circumstances as may be reasonably  necessary to preserve any rights or privileges of the Secured Parties under the Loan  Documents or applicable law; and   (iv) to subordinate any Lien on any property granted to or held by the  Collateral Agent under any Loan Document to the holder of any Lien on such property that  is permitted by Section 6.02(j).  (c) Upon the request of the Collateral Agent at any time, the Secured Parties  will confirm in writing the Collateral Agent’s authority to release particular types or items of  Collateral pursuant to this Section 8.09.  (d) Each Loan Party hereby irrevocably appoints each Collateral Agent as such  Loan Party’s attorney-in-fact, with full authority to, after the occurrence and during the  continuance of an Event of Default, act for such Loan Party and in the name of such Loan Party  





 






  150  US-DOCS\125501258.12  to, in such Collateral Agent’s discretion upon the occurrence and during the continuance of an  Event of Default, (i) file one or more financing or continuation statements, and amendments  thereto, relative to all or any part of the Collateral without the signature of such Loan Party where  permitted by law, (ii) to receive, endorse, and collect any drafts or other instruments, documents,  and chattel paper which are part of the Collateral, (iii) to ask, demand, collect, sue for, recover,  compromise, receive, and give acquittance and receipts for moneys due and to become due under  or in respect of any of the Collateral, (iv) to file any claims or take any action or institute any  proceedings which such Collateral Agent may reasonably deem necessary or desirable for the  collection of any of the Collateral or otherwise to enforce the rights of such Collateral Agent with  respect to any of the Collateral and (v) if any Loan Party fails to perform any covenant contained  in this Agreement or the other Security Documents relating to the Collateral after the expiration of  any applicable grace periods, such Collateral Agent may itself perform, or cause performance of,  such covenant, and such Loan Party shall pay for the expenses of the Collateral Agent incurred in  connection therewith in accordance with Section 9.05.  The power of attorney granted hereby is  coupled with an interest and is irrevocable.  (e) The powers conferred on the Collateral Agents under this Agreement and  the other Security Documents are solely to protect their respective interest in the Collateral and  shall not impose any duty upon it to exercise any such powers.  Beyond the safe custody thereof,  each Collateral Agent and each Secured Party shall have no duty with respect to any Collateral in  its possession or control (or in the possession or control of any agent or bailee) or with respect to  any income thereon or the preservation of rights against prior parties or any other rights pertaining  thereto. Each Collateral Agent shall be deemed to have exercised reasonable care in the custody  and preservation of the Collateral in its possession if the Collateral is accorded treatment  substantially equal to that which such Collateral Agent accords its own property.  None of the  Agents, any Lender or any other Secured Party shall be liable or responsible for any loss or damage  to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission  of any warehouseman, carrier, forwarding agency, consignee, broker or other agent or bailee  selected by the Parent Borrower or selected by an Agent in good faith.  (f) Anything contained in any of the Loan Documents to the contrary  notwithstanding, the Borrowers, the Agents and each Secured Party hereby agree that (i) no  Secured Party shall have any right individually to realize upon any of the Collateral or to enforce  any of the Guarantees in the Guarantee Agreements or any other Security Document, it being  understood and agreed that all powers, rights and remedies hereunder may be exercised solely by  the Applicable Administrative Agent, on behalf of the applicable Secured Parties in accordance  with the terms hereof, and all powers, rights and remedies under the Security Documents may be  exercised solely by the Applicable Collateral Agents, and (ii) in the event of a foreclosure or  similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or  private sale or other disposition (including, without limitation, pursuant to Section 363(k), Section  1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agents (or any Lender,  except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or  otherwise of the Bankruptcy Code,) may be the purchaser or licensor of any or all of such Collateral  at any such sale or other disposition and the Collateral Agents, as agent for and representative of  the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities)  shall be entitled, upon instructions from the Required Lenders, for the purpose of bidding and  making settlement or payment of the purchase price for all or any portion of the Collateral sold at  





 






  151  US-DOCS\125501258.12  any such sale or disposition, to use and apply any of the Obligations as a credit on account of the  purchase price for any collateral payable by the Collateral Agents at such sale or other disposition.  SECTION 8.10 No Other Duties, etc..  Anything herein to the contrary  notwithstanding, the Lead Arranger and the Sole Bookrunner listed on the cover page hereof shall  not have any powers, duties or responsibilities under this Agreement or any of the other Loan  Documents, except in its capacity, as applicable, as an Agent, a Lender or an Issuing Bank.   SECTION 8.11 Agents May File Proofs of Claim.  In case of the pendency of any  proceeding under any Insolvency 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 Disbursement  shall then be due and payable as herein expressed or by declaration or otherwise and irrespective  of whether an Agent shall have made any demand on a 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 Disbursements and all other Obligations (other than  obligations of the Parent Borrower or its Subsidiaries owing to any Lender or Affiliate thereof  pursuant to any Hedging Agreement, any Banking Services Obligations or the Bilateral  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 Issuing Banks and the Agents (including  any claim for the reasonable expenses, disbursements and advances of the Lenders, the Issuing  Bank and the Agents and all other amounts due the Lenders, the Issuing Banks and the Agents  under Sections 2.05 and 9.08) 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.  Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any  such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such  payments to such Agent and, if such Agent shall consent to the making of such payments directly  to the Lenders and the Issuing Banks, to pay to such Agent any amount due for the reasonable  expenses, disbursements and advances of such Agent, and any other amounts due such Agent  under Sections 2.05 and 9.08.  Nothing contained herein shall be deemed to authorize any Agent to authorize or consent to or  accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement,  adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank  to authorize Agent to vote in respect of the claim of any Lender or Issuing Bank or in any such  proceeding.  SECTION 8.12 Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became  a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party  hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Applicable  Administrative Agent, the Lead Arranger and their respective Affiliates, and not, for the avoidance  





 






  152  US-DOCS\125501258.12  of doubt, to or for the benefit of the Applicable 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 the  Plan Asset Regulations) 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 Applicable Administrative Agent, in its sole discretion, and such  Lender.  (b) In addition, unless Section 8.12(a)(i) is true with respect to a Lender or such  Lender has not provided another representation, warranty and covenant as provided in Section  8.12(a)(iv), 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 Applicable  Administrative Agent, and each Arranger and their respective Affiliates, and not, for the avoidance  of doubt, to or for the benefit of the Applicable Borrower or any other Loan Party, that none of the  Applicable Administrative Agent, or any Arranger or any of their respective Affiliates is a  fiduciary with respect to the Collateral or the assets of such Lender (including in connection with  the reservation or exercise of any rights by the Applicable Administrative Agent under this  Agreement, any Loan Document or any documents related to hereto or thereto).  (c) The Applicable Administrative Agent hereby informs the Lenders that each  such Person is not undertaking to provide impartial investment advice, or to give advice in a  





 






  153  US-DOCS\125501258.12  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.  SECTION 8.13 Erroneous Payments.  (a) If the Administrative Agent notifies a Lender, Issuing Bank or Secured  Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party  (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the  Administrative Agent has determined in its sole reasonable discretion that any funds received by  such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously  transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient  (whether or not known to such Payment Recipient)  (any such funds, whether received as a  payment, prepayment or repayment of principal, interest, fees, distribution or otherwise,  individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous  Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of  the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for  the benefit of the Administrative Agent, and such Payment Recipient shall promptly, but in no  event later than one Business Day thereafter, return to the Administrative Agent, in same day funds  (in the currency so received), the amount of any such Erroneous Payment (or portion thereof),  together with interest thereon in respect of each day from and including the date such Erroneous  Payment (or portion thereof) was received by such Payment Recipient to the date such amount is  repaid to the Administrative Agent (i) in respect of amounts under the U.S. Revolving Credit  Facility only, at the greater of the Federal Funds Effective Rate and a rate determined by the  Administrative Agent in accordance with prevailing banking industry rules on interbank  compensation from time to time in effect, or (ii) in respect of the Canadian Revolving Credit  Facility only, at a rate determined by the Canadian Administrative Agent in accordance with  prevailing banking industry rules on interbank compensation from time to time in effect. To the  extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an  Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense  or right of set-off or recoupment with respect to any demand, claim or counterclaim by the  Administrative Agent for the return of any Erroneous Payment received, including without  limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice  of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive,  absent manifest error.     





 






  154  US-DOCS\125501258.12  (b) Without limiting immediately preceding clause (a), each Payment Recipient  hereby further agrees that if it receives an Erroneous Payment from the Administrative Agent (or  any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified  in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to  such Erroneous Payment (the “Payment Notice”), or (y) that was not preceded or accompanied by  a Payment Notice sent by the Administrative Agent (or any of its Affiliates), then, said Payment  Recipient shall be on notice, in each case, that an error has been made with respect to such  Erroneous Payment. Each Payment Recipient agrees that, in each such case, or if it otherwise  becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such  Payment Recipient shall promptly notify the Administrative Agent of such occurrence and, upon  demand from the Administrative Agent, it shall promptly, but in no event later than one Business  Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or  portion thereof) in same day funds (in the currency so received), together with interest thereon in  respect of each day from and including the date such Payment (or portion thereof) was received  by such Payment Recipient to the date such amount is repaid to the Administrative Agent (i) in  respect of amounts under the U.S. Revolving Credit Facility only, at the greater of the Federal  Funds Effective Rate and a rate determined by the Administrative Agent in accordance with  prevailing banking industry rules on interbank compensation from time to time in effect, or (ii) in  respect of the Canadian Revolving Credit Facility only, at a rate determined by the Canadian  Administrative Agent in accordance with prevailing banking industry rules on interbank  compensation from time to time in effect.    (c) Each Payment Recipient hereby authorizes the Administrative Agent to set  off, net and apply any and all amounts at any time owing to such Payment Recipient under any  Loan Document, or otherwise payable or distributable by the Administrative Agent to such  Payment Recipient from any source, against any amount due to the Administrative Agent under  any of the immediately preceding clauses (a) or (b) or under the indemnification provisions of this  Agreement.  (d) In the event that an Erroneous Payment (or portion thereof) is not recovered  by the Administrative Agent for any reason, after demand therefor by the Administrative Agent  (such unrecovered amount, an “Erroneous Payment Return Deficiency”),  the Borrowers and each  other Loan Party hereby agrees that (x) the Administrative Agent shall be subrogated to all the  rights of such Payment Recipient with respect to such amount (including, without limitation, the  right to sell and assign the Loans (or any portion thereof), which were subject to the Erroneous  Payment Return Deficiency) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge  or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in  each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such  Erroneous Payment that is comprised of funds received by the Administrative Agent from the  Borrowers or any other Loan  Party for the purpose of making such Erroneous Payment  For the  avoidance of doubt, no assignment of an Erroneous Payment Deficiency will reduce the  Commitments of any Payment Recipient and such Commitments shall remain available in  accordance with the terms of this Agreement.  In addition, each party hereto agrees that, except to  the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to  the assignment of an Erroneous Payment Deficiency, and irrespective of whether the  Administrative Agent may be equitably subrogated, the Administrative Agent shall be  





 






  155  US-DOCS\125501258.12  contractually subrogated to all the rights and interests of the applicable Payment Recipient under  the Loan Documents with respect to each Erroneous Payment Return Deficiency.  (e) Each party’s obligations, agreements and waivers under this Section 8.13  shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or  obligations by, or the replacement of, a Lender or Issuing Bank, the termination of the  Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion  thereof) under any Loan Document.    (f) To the extent permitted by applicable law, no Payment Recipient shall assert  any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any  claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim  or counterclaim by the Administrative Agent for the return of any Erroneous Payment received,  including without limitation waiver of any defense based on “discharge for value” or any similar  doctrine.  (g) For purposes of this Section 8.13, each Lender:  (i) agrees it is executing and delivering this Agreement with respect to  this Section 8.13 both on its own behalf and as agent for and on behalf of its Affiliates  referred to in this Section 8.13 and any person receiving funds under or pursuant to any of  the Loan Documents on behalf of such Lender or any of such Affiliates;  (ii) represents, warrants, covenants and agrees that its Affiliates referred  to in this Section 8.13 and any person receiving funds under or pursuant to any of the Loan  Documents on behalf of such Lender or any of such Affiliates are bound by the provisions  of this Section 8.13; and  (iii) agrees that any matter or thing done or omitted to be done by such  Lender, its Affiliates or any person receiving funds under or pursuant to any of the Loan  Documents on behalf of such Lender or any of such Affiliates which are the subject of this  Section 8.13 will be binding upon such Lender and each Lender does hereby indemnify  and save the Agent and its Affiliates harmless from any and all losses, expenses, claims,  demands or other liabilities of the Agent and its Affiliates resulting from the failure of such  Lender, its Affiliates or such persons to comply with their obligations under and in respect  of this Section 8.13, in each case, in accordance with and subject to the limitations in  Section 9.08.  ARTICLE IX    MISCELLANEOUS  SECTION 9.01 Notices.    (a) Notices Generally.  Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in paragraph (b) below),  





 






  156  US-DOCS\125501258.12  notices and other communications provided for herein or (except as otherwise provided therein)  any other Loan Document shall be in writing and shall be delivered by hand or overnight courier  service, mailed by certified or registered mail or sent by fax, as follows:  (i) if to the Parent Borrower, to it at Three Allen Center, 333 Clay  Street, Suite 4980, Houston, Texas 77002, Attention of Chief Financial Officer (Fax No.  (713) 510-2499);  (ii) if to a U.S. Borrower, to it at Three Allen Center, 333 Clay Street,  Suite 4980, Houston, Texas 77002, Attention of Chief Financial Officer (Fax No. (713)  510-2499);  (iii) if to the Australian Borrower, to it at Civeo Pty Limited, c/o Civeo  Corporation, Three Allen Center, 333 Clay Street, Suite 4980, Houston, Texas 77002,  Attention of Chief Financial Officer (Fax No. (713) 510-2499);  (iv) if to the Administrative Agent or the U.S. Collateral Agent, to Royal  Bank of Canada, at 4th Floor, 20 King Street West, Toronto, Ontario M5H 1C4, Attention:  Manager, Agency Services Group;  (v) if to the Canadian Administrative Agent or the Canadian Collateral  Agent, to Royal Bank of Canada, at 4th Floor, 20 King Street West, Toronto, Ontario M5H  1C4, Attention: Manager, Agency Services Group (Fax No. (416) 842-4023);   (vi) if to the Australian Administrative Agent or the Australian  Collateral Agent, to RBC Europe Limited, at RBC Europe Limited, Thames Court, One  Queenhithe, London, EC4V 3DQ, United Kingdom, Attention: Manager Loans Agency  (Fax No. +44 20 7029 7914); and  (vii) if to a Lender or an Issuing Bank, to it at its address (or fax number)  set forth in its Administrative Questionnaire.  Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall  be deemed to have been given when received; notices sent by telecopier shall be deemed to have  been given when sent (except that, if not given during normal business hours for the recipient,  shall be deemed to have been given at the opening of business on the next Business Day for the  recipient).  Notices delivered through electronic communications to the extent provided in  paragraph (b) below, shall be effective as provided in said paragraph (b).  Any party may change  its address for notices by giving notice of such change to each party in accordance with this  Section 9.01; provided that, any Lender shall be required only to provide notice of such change to  the Applicable Borrower and the Applicable Administrative Agent.  (b) Electronic Communications.  Notices and other communications to the  Lenders and the Issuing Banks hereunder may be delivered or furnished by electronic  communication (including e-mail and Internet or intranet websites) pursuant to procedures  approved by the Applicable Administrative Agent, provided that the foregoing shall not apply to  notices to any Lender or Issuing Bank pursuant to Article II if such Lender or Issuing Bank, as  applicable, has notified the Applicable Administrative Agent that it is incapable of receiving  





 






  157  US-DOCS\125501258.12  notices under such Article by electronic communication.  Each Administrative Agent or Borrower  may, in its discretion, agree to accept notices and other communications to it hereunder by  electronic communications pursuant to procedures approved by it, provided that approval of such  procedures may be limited to particular notices or communications.  Unless an Administrative Agent otherwise prescribes, (i) notices and other communications sent  to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement  from the intended recipient (such as by the “return receipt requested” function, as available, return  e-mail or other written acknowledgement), provided that if such notice or other communication is  not sent during the normal business hours of the recipient, such notice or communication shall be  deemed to have been sent at the opening of business on the next business day for the recipient, and  (ii) notices or communications posted to an Internet or intranet website shall be deemed received  upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing  clause (i) of notification that such notice or communication is available and identifying the website  address therefor.  (c) Effectiveness of Facsimile Documents and Signatures.  Loan Documents  may be transmitted and/or signed by facsimile or in electronic (i.e., “pdf” or “tif”) format.  The  effectiveness of any such documents and signatures shall, subject to applicable law, have the same  force and effect as manually-signed originals and shall be binding on all Loan Parties, the Agents  and the Lenders.  The Agents may also require that any such documents and signatures be  confirmed by a manually-signed original thereof; provided, however, that the failure to request or  deliver the same shall not limit the effectiveness of any facsimile document or signature.  (d) 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 any Agent or any of its Related Parties  (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender, any Issuing  Bank or any other person for losses, claims, damages, liabilities or expenses of any kind (whether  in tort, contract or otherwise) arising out of any Borrower’s or any Agent’s transmission of  Borrower Materials through the Internet, except to the extent that such losses, claims, damages,  liabilities or expenses are determined by a court of competent jurisdiction by a final and non- appealable judgment to have resulted from the gross negligence or willful misconduct of such  Agent Party; provided, however, that in no event shall any Agent Party have any liability to any  Borrower, any Lender, any Issuing Bank or any other person for indirect, special, incidental,  consequential or punitive damages (as opposed to direct or actual damages).  (e) Reliance by Agents, Issuing Banks and Lenders.  Each of the Agents, Issuing  Banks and the Lenders shall be entitled to rely and act upon any notices (including telephonic and  electronically communicated (e-mailed) Borrowing Requests) purportedly given by or on behalf  





 






  158  US-DOCS\125501258.12  of a 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  Borrowers shall indemnify the Agents, the Issuing Banks, each Lender and their Related Parties  from all losses, costs, expenses and liabilities resulting from the reliance by such person on each  notice purportedly given by or on behalf of any Borrower.  All telephonic notices to and other  communications with any Agent, Issuing Bank or Lender may be recorded by such Agent, Issuing  Bank or Lender, and each of the parties hereto hereby consents to such recording.  SECTION 9.02 Survival of Agreement.  All covenants, agreements, representations  and warranties made by a Borrower herein and in the certificates or other instruments prepared or  delivered in connection with or pursuant to this Agreement or any other Loan Document shall be  considered to have been relied upon by the Lenders and the Issuing Banks and shall survive the  making by the Lenders of the Loans and the issuance of Letters of Credit by the Issuing Banks,  regardless of any investigation made by the Lenders or the Issuing Banks or on their behalf, and  shall continue in full force and effect as long as the principal of or any accrued interest on any  Loan or any Fee or any other amount payable under this Agreement or any other Loan Document  is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments  have not been terminated.  The provisions of Sections 2.13, 2.15, 2.19, 9.05 and 9.16 shall remain  operative and in full force and effect regardless of the expiration of the term of this Agreement,  the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the  expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or  unenforceability of any term or provision of this Agreement or any other Loan Document, or any  investigation made by or on behalf of the Administrative Agents, the Collateral Agents, any Lender  or any Issuing Bank.  SECTION 9.03 Binding Effect.  This Agreement shall become effective when it shall  have been executed by the Borrowers and the Administrative Agent and when the Administrative  Agent shall have received counterparts hereof which, when taken together, bear the signatures of  each of the other parties hereto.  SECTION 9.04 Successors and Assigns.    (a) Generally.  The terms and provisions of this Agreement and the other Loan  Documents shall be binding upon and inure to the benefit of the parties hereto and their respective  successors and assigns permitted hereby, except that no Loan Party may assign or otherwise  transfer any of its rights or obligations hereunder except as expressly permitted hereunder without  the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its  rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions  of paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of  paragraph (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to  the restrictions of paragraph (f) or (h) of this Section or (iv) to an SPC in accordance with the  provisions of paragraph (g) of this Section (and any other attempted assignment or transfer by any  party hereto shall be null and void); provided that, with respect to any such assignment under the  Australian Revolving Credit Facility, if such assignment would result in there being only one  Australian Lender, such Lender shall acknowledge in the applicable Assignment and Acceptance  that such assignment may have an effect on Australian Withholding Taxes in relation to interest  





 






  159  US-DOCS\125501258.12  payments made by the Australian Borrower.  Nothing in this Agreement, expressed or implied,  shall be construed to confer upon any person (other than the parties hereto, their respective  successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of  this Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or  equitable right, remedy or claim under or by reason of this Agreement.  (b) Assignments by Lenders.  Any Lender may at any time assign to one or more  Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all  or a portion of its Commitments (including, for purposes of this Section 9.04(b), participations in  Letters of Credit and Swing Line Loans) and the Loans at the time owing to it); provided that any  such assignment shall be subject to the following conditions:   (i) Minimum Amounts.    (A) in the case of an assignment of the entire remaining amount  of the assigning Lender’s Commitment under any Facility or the Loans at the time  owing to it under such Facility or in the case of an assignment to a Lender, an  Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned;  and  (B) in any case not described in paragraph (b)(i)(A) of this  Section, the aggregate amount of the Commitment (which for this purpose includes  Loans outstanding thereunder) or, if the applicable 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  Acceptance with respect to such assignment is delivered to the Administrative  Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the  Trade Date) shall not be less than U.S.$5,000,000, unless each of the Applicable  Administrative Agent and, so long as no Event of Default has occurred and is  continuing, the Parent Borrower otherwise consents (each such consent not to be  unreasonably withheld or delayed); provided, however, that concurrent assignments  to members of an Assignee Group and concurrent assignments from members of  an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and  members of its Assignee Group) will be treated as a single assignment for purposes  of determining whether such minimum amount has been met.  (ii) Proportionate Amounts.  Each partial assignment shall be made as  an assignment of a proportionate part of all the assigning Lender’s rights and obligations  under this Agreement with respect to the Loan or the Commitment assigned, except that  this clause (ii) shall not apply to the Applicable Swing Line Lender’s rights and obligations  in respect of Swing Line Loans.    (iii) Required Consents.  No consent shall be required for any  assignment except to the extent required by paragraph (b)(i)(B) of this Section and, in  addition:  





 






  160  US-DOCS\125501258.12  (A) the consent of the Parent Borrower (such consent not to be  unreasonably withheld or delayed) shall be required for assignments in respect of  the Canadian Term Loan Facility, the U.S. Revolving Credit Facility, the Canadian  Revolving Credit Facility or the Australian Revolving Credit Facility, if such  assignment is to a person that is not a Lender under the Canadian Term Loan  Facility, the U.S. Revolving Credit Facility, the Canadian Revolving Credit Facility  or the Australian Revolving Credit Facility, an Affiliate of such Lender or any  Approved Fund with respect to such Lender, provided that no such consent shall be  required if an Event of Default shall have occurred and is continuing; provided  further that if the Parent Borrower shall fail to respond to a request for consent to  an assignment within ten (10) Business Days following receipt of such request, the  Parent Borrower shall be deemed to have given such consent.  (B) the consent of the Applicable Administrative Agent (such  consent not to be unreasonably withheld or delayed) shall be required (1) for  assignments in respect of the U.S. Revolving Credit Facility, the Canadian  Revolving Credit Facility or the Australian Revolving Credit Facility if such  assignment is to a person that is not a Lender under the U.S. Revolving Credit  Facility, the Canadian Revolving Credit Facility or the Australian Revolving Credit  Facility, an Affiliate of such Lender or an Approved Fund with respect to such  Lender or (2) for assignments of Canadian Term Loans to a person who is not a  Lender, an Affiliate of a Lender or an Approved Fund;   (C) the consent of each Issuing Bank (such consent not to be  unreasonably withheld or delayed) shall be required for any assignment in respect  of the U.S. Revolving Credit Facility, the Canadian Revolving Credit Facility or  the Australian Revolving Credit Facility; and  (D) the consent of the Applicable Swing Line Lender (such  consent not to be unreasonably withheld or delayed) shall be required for any  assignment in respect of the U.S. Revolving Credit Facility or the Canadian  Revolving Credit Facility, as applicable.  (iv) Assignment and Acceptance.  The parties to each assignment shall  execute and deliver to the Applicable Administrative Agent an Assignment and  Acceptance, together with a processing and recordation fee of $3,500; provided, however,  that the Applicable Administrative Agent may, in its sole discretion, elect to waive such  processing and recordation fee in the case of any assignment; and provided, further, that  only one such fee shall be payable in the event of contemporaneous assignments to  members of an Assignee Group and concurrent assignments from members of an Assignee  Group to a single Eligible Assignee (or to an Eligible Assignee and members of its  Assignee Group).  The assignee, if it is not a Lender, shall deliver to the Applicable  Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Borrower.  No such assignment shall be made to  the Parent Borrower or any of the Parent Borrower’s Affiliates or Subsidiaries.  





 






  161  US-DOCS\125501258.12  (vi) No Assignment to Natural Persons.  No such assignment shall be  made to a natural person.  (vii) Defaulting Lenders.  No assignment shall be made to any Defaulting  Lender or any of its Subsidiaries, or any person who, upon becoming a Lender hereunder,  would constitute any of the foregoing persons.  Upon such execution, delivery, acceptance and recording thereof by the Applicable Administrative  Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each  Assignment and Acceptance, (A) the Eligible Assignee thereunder shall be a party hereto for all  purposes and, to the extent that rights and obligations hereunder have been assigned to it pursuant  to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and  (B) such assigning Lender thereunder shall, to the extent that rights and obligations hereunder have  been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be  released from its obligations under this Agreement (and, in the case of an Assignment and  Acceptance covering all or the remaining portion of such Lender’s rights and obligations under  this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to  the benefits of Sections 2.11, 2.13, and 9.05 with respect to facts and circumstances occurring prior  to the effective date of such assignment).  Any assignment or transfer by a Lender of rights or  obligations under this Agreement that does not comply with this 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.  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  Applicable Administrative Agent in an aggregate amount sufficient, upon distribution thereof as  appropriate (which may be outright payment, purchases by the assignee of participations or sub- participations, or other compensating actions, including funding, with the consent of the Parent  Borrower and the Applicable 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 Applicable Administrative Agent 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 Swing Line Loans in  accordance with its Applicable Pro Rata 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.  (c) Register.  The Applicable Administrative Agent shall maintain at its  Applicable Lending Office a copy of each Assignment and Acceptance delivered to and accepted  by it and a register for the recordation of the names and addresses of the Lenders and the  Commitments of, and principal amount of the Loans owing to, each Lender from time to time (the  “Register”).  The entries in the Register shall be conclusive and binding for all purposes, absent  manifest error, and each of the Loan Parties, the Agents, the Issuing Banks, and the Lenders may  





 






  162  US-DOCS\125501258.12  treat each person whose name is recorded in the Register as a Lender hereunder for all purposes  of this Agreement.  In addition, the Applicable Administrative Agent shall maintain on the Register  information regarding the designation, and revocation of designation, of any Lender as a  Defaulting Lender.  The Register shall be available for inspection by the Parent Borrower, the U.S.  Borrower or 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 Parent Borrower or the Applicable Administrative Agent, sell participations to any  person (other than a natural person, a Defaulting Lender or the Parent Borrower or any of the  Parent Borrower’s or a Defaulting Lender’s Affiliates or subsidiaries) (each, a “Participant”) in  all or a portion of such Lender’s rights and/or obligations under this Agreement and the other Loan  Documents (including all or a portion of its Commitment and/or the Loans (including such  Lender’s participations in Letter of Credit Obligations and Swing Line 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 Parent Borrower, the Agents and the other Lenders shall continue to deal  solely and directly with such Lender in connection with such Lender’s rights and obligations under  this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation  shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve  any amendment, modification or waiver of any provision of this Agreement; provided that such  agreement or instrument may provide that such Lender will not, without the consent of the  Participant, agree to any amendment, waiver or other modification described in the first proviso to  Section 9.08 that directly affects such Participant.  Subject to subsection (e) of this Section, the  Parent Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14,  2.15, 2.19 and 9.05 to the same extent as if it were a Lender and had acquired its interest by  assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each  Participant also shall be entitled to the benefits of Section 9.06 as though it were a Lender, provided  that such Participant agrees to be subject to Section 2.17 as though it were a Lender.  Each Lender  that sells a participation shall, acting solely for this purpose as an agent of the applicable 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, no Administrative Agent (in its capacity as Administrative Agent)  shall have any responsibility for maintaining a Participant Register.  (e) A Participant shall not be entitled to receive any greater payment under  Section 2.13 or 2.14 than the applicable Lender would have been entitled to receive with respect  to the participation sold to such Participant, unless the sale of the participation to such Participant  is made with the Parent Borrower’s prior written consent.  A Participant that would be a Foreign  





 






  163  US-DOCS\125501258.12  Lender if it were a Lender shall not be entitled to the benefits of Section 2.19 unless the Applicable  Borrower is notified of the participation sold to such Participant and such Participant agrees, for  the benefit of the Applicable Borrower, to comply with Section 2.19(g) as though it were a Lender.  (f) Any Lender may at any time pledge or assign a security interest in all or any  portion of its rights under this Agreement to secure obligations of such Lender, including any  pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge  or assignment shall release such Lender from any of its obligations hereunder or substitute any  such pledgee or assignee for such Lender as a party hereto.  (g) Notwithstanding anything to the contrary contained herein, any Lender (a  “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing  from time to time by the Granting Lender to the Applicable Administrative Agent and the Parent  Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender  would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein  shall constitute a commitment by any SPC to fund any Loan, and (ii) if a SPC elects not to exercise  such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be  obligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that  (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs  or expenses or otherwise increase or change the obligations of the Borrowers under this  Agreement, (ii) no SPC shall be liable for any indemnity or similar payment obligation under this  Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes,  including the approval of any amendment, waiver or other modification of any provision of any  Loan Document, remain the lender of record hereunder.  The making of a Loan by a SPC hereunder  shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were  made by such Granting Lender.  In furtherance of the foregoing, each party hereto hereby agrees  (which agreement shall survive the termination of this Agreement) that, prior to the date that is  one year and one day after the payment in full of all outstanding commercial paper or other senior  debt of any SPC, it will not institute against, or join any other person in instituting against, such  SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the  laws of the United States or any State thereof.  Notwithstanding anything to the contrary contained  herein, any SPC may (i) with notice to, but without prior consent of the Parent Borrower and the  Applicable Administrative Agent and without paying any processing fee therefor, assign all or any  portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii)  disclose on a confidential basis any non-public information relating to its funding of Loans to any  rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity  enhancement to such SPC.  (h) Notwithstanding anything to the contrary contained herein, any Lender that  is a Fund may create a security interest in all or any portion of the Loans owing to it and the note,  if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund  as security for such obligations or securities, provided that unless and until such trustee actually  becomes a Lender in compliance with the other provisions of this Section 9.04, (i) no such pledge  shall release the pledging Lender from any of its obligations under the Loan Documents and (ii)  such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan  Documents even though such trustee may have acquired ownership rights with respect to the  pledged interest through foreclosure or otherwise.  





 






  164  US-DOCS\125501258.12  SECTION 9.05 Expenses; Indemnity.    (a) Costs and Expenses.  The Borrowers agree, jointly and severally, to pay or  reimburse (i) all reasonable out-of-pocket expenses incurred by the Lead Arranger, the  Administrative Agents, the Collateral Agents, the Issuing Banks and their Affiliates (including the  reasonable fees, charges and disbursements of counsel for the Agents, but limited to, with respect  to legal expenses, reasonable and documented fees and expenses of one primary counsel and, if  reasonably necessary, one local counsel in each of Australia, Canada and any other relevant  material jurisdiction and, solely in the case of an actual or potential conflict of interest, one  additional counsel to the affected person (taken as a whole)), 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 hereby  or thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses incurred by any  Agent, any Lender or Issuing Bank (including, the reasonable fees, charges and disbursements of  any counsel for any Agent, any Lender or Issuing Bank), 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 reasonable out-of-pocket expenses incurred during any  workout, restructuring or negotiations in respect of such Loans or Letters of Credit.  The foregoing  costs and expenses under this Section 9.05 shall include all due diligence, search, filing, recording,  title insurance, printing, reproduction, document delivery, travel, CUSIP, electronic platform,  communication costs and appraisal charges and fees and Taxes related thereto, and other out-of- pocket expenses reasonably incurred by any Agent, Lender or Issuing Bank (including, in  connection with any workout or restructuring, the cost of financial advisors and other outside  experts retained by any Agent).  All amounts due under this Section 9.05 shall be payable within  30 days after written demand therefore unless such amounts are being contested in good faith by  the Parent Borrower.  The agreements in this Section shall survive the termination of the  Commitments and repayment of all Obligations.  (b) Indemnification by the Borrowers.  The Borrowers agree, jointly and  severally, to indemnify the Administrative Agents, the Collateral Agents, each Lender, each  Issuing Bank and the Related Parties of any of the foregoing persons (each such person being  called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses,  claims, damages, liabilities and related expenses, including reasonable counsel fees (limited to  reasonable and documented fees and expenses of one primary counsel and, if reasonably necessary,  one local counsel in Australia, Canada and any other relevant material jurisdiction and, solely in  the case of an actual or potential conflict of interest, one additional counsel to the affected  Indemnitees (taken as a whole)), charges and disbursements but excluding any such loss, claim,  damage, liability or expense resulting from a claim or proceeding brought by a Lender against any  other Lender (other than any Agent in its capacity as such), incurred by or asserted against any  Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery  of this Agreement or any other Loan Document or any agreement or instrument contemplated  hereby or thereby, the performance by the parties thereto of their respective obligations thereunder  or the consummation of the transactions contemplated thereby, (ii) any Loan or Letter of Credit or  the use or proposed use of the proceeds of the Loans or issuance of Letters of Credit (including  any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the  





 






  165  US-DOCS\125501258.12  documents presented in connection with such demand do not strictly comply with the terms of  such Letter of Credit), (iii) 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 a Borrower or any other Loan Party, and regardless of whether or  not any Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release of Hazardous  Materials on any property owned or operated by a Borrower or any of the Subsidiaries, or any  Environmental Liability related in any way to a Borrower or the Subsidiaries (collectively, the  “Indemnified Liabilities”); provided that SUCH INDEMNITY SHALL EXPRESSLY  INCLUDE ANY SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES OR EXPENSE  INCURRED BY REASON OF THE PERSON BEING INDEMNIFIED’S OWN  NEGLIGENCE; provided that the foregoing indemnity will not, as to any Indemnitee, apply to  losses, claims, damages, liabilities or related expenses to the extent they are found in a final, non- appealable judgment of a court of competent jurisdiction to have resulted from the willful  misconduct, bad faith or gross negligence of such Indemnitee or, with respect to any  Environmental Liability, to the extent such Indemnitee, after foreclosure or other remedial action,  has caused such Environmental Liability.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL  REQUIREMENTS, NO LOAN PARTY SHALL ASSERT, AND HEREBY WAIVES, ANY  CLAIM AGAINST ANY INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR  SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED  TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH,  OR AS A RESULT OF, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY  AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE  TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR  LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREOF.  No Borrower shall be liable for any settlement of any claim, litigation, investigation or  proceeding (any of the foregoing, a “Proceeding”) effected without its consent (which consent  shall not be unreasonably conditioned, withheld or delayed) unless (x) the Applicable Borrower  has not confirmed that the indemnity provisions of this Section 9.05(b) are applicable or (y) a claim  for indemnity has been made in accordance with this Section 9.05(b) which the Applicable  Borrower has not paid with 30 days of the date on which such claim was made.  If any Proceeding  is settled with any Borrower’s written consent or if there is a final judgment for the plaintiff in any  such Proceedings, the Borrowers shall indemnify and hold harmless each Indemnitee from and  against any and all losses, claims, damages, liabilities and expenses by reason of such settlement  or judgment in accordance with the preceding paragraph.  The Borrowers shall not, without the  prior written consent of an Indemnitee (which consent shall not be unreasonably conditioned,  withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending  or threatened Proceedings in respect of which indemnity could have been sought hereunder by  such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee  in form and substance satisfactory to such Indemnitee from all liability on claims that are the  subject matter of such Proceedings, (ii) does not include any statement as to or any admission of  fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary  confidentiality and non-disparagement provisions.  





 






  166  US-DOCS\125501258.12  (c) Reimbursement by Lenders.  To the extent that a Borrower for any reason  fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid  by it to an Agent (or any sub-agent thereof), an Issuing Bank, a Swing Line Lender or any Related  Party of any of the foregoing, each Lender severally agrees to pay to the Applicable Administrative  Agent (or any such sub-agent), the Applicable Issuing Bank, the Applicable Swing Line Lender or  such Related Party, as the case may be, such Lender’s Applicable Pro Rata Percentage (determined  as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such  unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage,  liability or related expense, as the case may be, was incurred by or asserted against the Applicable  Administrative Agent (or any such sub-agent), the Applicable Issuing Bank or the Applicable  Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing  acting for the Applicable Administrative Agent (or any such sub-agent), Applicable Issuing Bank  or the Applicable Swing Line Lender in connection with such capacity.    (d) The provisions of this Section 9.05 shall remain operative and in full force  and effect regardless of the expiration of the term of this Agreement, the consummation of the  transactions contemplated hereby, the repayment of any of the Loans, the expiration of the  Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term  or provision of this Agreement or any other Loan Document, or any investigation made by or on  behalf of any Agent, Lender or Issuing Bank.  All amounts due under this Section 9.05 shall be  payable on written demand therefor.  SECTION 9.06 Right of Setoff.  If an Event of Default shall have occurred and be  continuing, each Agent, Lender, Issuing Bank and each of their respective Affiliates is hereby  authorized at any time and from time to time, except to the extent prohibited by 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 Indebtedness (in whatever currency) at any time owing by  such Agent, Lender, Issuing Bank to or for the credit or the account of any Borrower or any other  Loan Party to whom it has made Loans against any of and all the obligations of such Borrower or  Loan Party now or hereafter existing under this Agreement and other Loan Documents held by  such Agent, Lender or Issuing Bank, irrespective of whether or not such Agent, Lender or Issuing  Bank shall have made any demand under this Agreement or such other Loan Document and  although such obligations may be contingent or unmatured or are owed to a branch or office of  such Lender or Issuing Bank different from the branch or office holding such deposit or obligated  on such Indebtedness.  The rights of each Agent, Lender, Issuing Bank and their respective  Affiliates under this Section 9.06 are in addition to other rights and remedies (including other  rights of setoff) which such Agent, Lender, Issuing Bank or their respective Affiliates may have.   Each Agent, Lender and Issuing Bank agrees to notify the Parent 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.  SECTION 9.07 Applicable Law.  THIS AGREEMENT SHALL BE CONSTRUED IN  ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.    SECTION 9.08 Waivers; Amendment.  (a) No failure or delay of any Agent, any  Lender or any Issuing Bank in exercising any power or right hereunder or under any other Loan  Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such  





 






  167  US-DOCS\125501258.12  right or power, or any abandonment or discontinuance of steps to enforce such a right or power,  preclude any other or further exercise thereof or the exercise of any other right or power.  The  rights and remedies of the Agents, the Issuing Banks and the Lenders hereunder and under the  other Loan Documents are cumulative and are not exclusive of any rights or remedies that they  would otherwise have.  No waiver of any provision of this Agreement or any other Loan Document  or consent to any departure by the Borrowers or any other Loan Party therefrom shall in any event  be effective unless the same shall be permitted by Section 9.08(b), and then such waiver or consent  shall be effective only in the specific instance and for the purpose for which given.  No notice or  demand on a Borrower in any case shall entitle the Borrowers to any other or further notice or  demand in similar or other circumstances.  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 Agents in accordance with Sections 7.02 and 7.03  for the benefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit  (i) the Agent from exercising on their own behalf the rights and remedies that inure to its benefit  (solely in its capacity as an Agent) hereunder and under the other Loan Documents, (ii) any Issuing  Bank from exercising the rights and remedies that inure to its benefit (solely in its capacity as  Issuing Bank) hereunder and under the other Loan Documents, (iii) any Swing Line Lender from  exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line  Lender) hereunder and under the other Loan Documents, (iv) any Lender from exercising setoff  rights in accordance with Section 9.06 (subject to the terms of Section 2.17), or (v) subject to  Section 8.11, 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 Insolvency Law.  (b) Any amendment or waiver of any provision of this Agreement or any other  Loan Document (other than the Fee Letter or any Letter of Credit Document), and any consent to  any departure by a Borrower or any other Loan Party therefrom, shall be effective if the same shall  be in writing and signed by the Required Lenders and the Borrowers (or by the Administrative  Agent (with the prior written consent of the Required Lenders) and the Borrowers), provided that  such waiver or consent shall be effective only in the specific instance and for the specific purpose  for which given; provided further that (x) any provision of this Agreement or any other Loan  Document may be amended by an agreement in writing signed by the Administrative Agent and  the Parent Borrower to cure any ambiguity, omission, defect or inconsistency so long as, in each  case, 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) no amendment, waiver or consent shall:   (i) extend the Maturity Date of or increase the stated amount of any  Commitment of any Lender or reinstate any Commitment of any Lender terminated  pursuant to the terms hereof without the written consent of such Lender;  (ii) postpone any date fixed by this Agreement for any scheduled  payment (but not any prepayment) of principal, interest or fees due to any Lender hereunder  without the written consent of such Lender;  





 






  168  US-DOCS\125501258.12  (iii) reduce the principal of, or the rate of interest specified herein on,  any Loan or L/C Disbursement or any interest or Fees payable hereunder without the prior  written consent of each Lender directly affected thereby (it being understood and agreed  that any change in the definition of “Total Net Leverage Ratio”, “Senior Secured Net  Leverage Ratio” or in the component definitions thereof, shall not constitute a reduction of  rate of interest or any interest or Fees payable hereunder); provided, however, that (A) only  the consent of the U.S. Required Revolving Lenders shall be required to waive any  obligation of the U.S. Borrower to pay default interest pursuant to Section 2.07 with respect  to the U.S. Revolving Credit Facility, including with respect to any amount payable  thereunder or in connection therewith  (B) only the consent of the Canadian Required  Revolving Lenders, as applicable shall be required to waive any obligation of the Parent  Borrower to pay default interest pursuant to Section 2.07 with respect to the Canadian  Revolving Credit Facility, including with respect to any amount payable thereunder or in  connection therewith, (C) only the consent of the Australian Required Revolving Lenders  shall be required to waive any obligation of the Australian Borrower to pay default interest  pursuant to Section 2.07 with respect to the Australian Revolving Credit Facility, including  with respect to any amount payable thereunder or in connection therewith, and (D) only  the consent of the Required Canadian Term Lenders shall be required to waive (1) any  obligation of the Parent Borrower to pay default interest pursuant to Section 2.07 with  respect to the Canadian Term Loan Facility, including with respect to any amount payable  thereunder or in connection therewith or (2) any mandatory prepayment of Canadian Term  Loans;  (iv) change Section 2.16 in a manner that would alter the pro rata sharing  of payments required thereby without the written consent of each Lender adversely affected  thereby or change the order of application, as among the Facilities, of any prepayment or  other amount specified in Section 7.05 from the order set forth in such Section in a manner  that adversely affects the Lenders under any Facility without the prior written consent of  (A) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Lenders, (B)  if such Facility is the Canadian Revolving Credit Facility, the Required Canadian  Revolving Lenders, (C) if such Facility is the Canadian Term Loan Facility, the Required  Canadian Term Lenders, (D) if such Facility is the Australian Revolving Credit Facility,  the Required Australian Lenders and (E) if the Bilateral Lender is materially and adversely  affected by such change, the Bilateral Lender;  (v) change any provision of this Section, or the percentage specified in  definition of “Required Lenders,” “Required U.S. Lenders,” “Required Canadian  Revolving Lenders,” “Required Canadian Term Lenders,” “Required Australian Lenders,”  or “Required Revolving Lenders,” or any other provision hereof specifying the number or  percentage of Lenders required to amend, waive or otherwise modify any rights hereunder  or make any determination or grant any consent hereunder, without the written consent of  each Lender directly affected thereby;  (vi) except as expressly permitted hereunder or under any Security  Document, (A) release the guaranty provided by the Parent Borrower pursuant to the  Guarantee Agreement without the written consent of each Lender, or (B) release all or  





 






  169  US-DOCS\125501258.12  substantially all of the value of the guaranties provided by the other Guarantors hereunder  or all or substantially all of the Collateral without the written consent of each Lender;   (vii) change Section 9.04 in a manner that imposes additional restrictions  on the ability of any Lender under any Facility to assign any of its rights or obligations  hereunder without the prior written consent of (A) if such Facility is the U.S. Revolving  Credit Facility, the Required U.S. Lenders, (B) if such Facility is the Canadian Revolving  Credit Facility, the Required Canadian Revolving Lenders, (C) if such Facility is the  Canadian Term Loan Facility, the Required Canadian Term Lenders and (D) if such  Facility is the Australian Revolving Credit Facility, the Required Australian Lenders;  (viii) change the provisions of any Loan Document in a manner that by its  terms adversely affects the rights in respect of payments due to Lenders holding one Class  of Loans differently from the rights in respect of payments due to Lenders holding another  Class of Loans without the prior written consent of the Required U.S. Lenders (if the U.S.  Revolving Lenders are the adversely affected Class), Required Canadian Revolving  Lenders (if the Canadian Revolving Lenders are the adversely affected Class), Required  Canadian Term Lenders (if the Canadian Term Lenders are the adversely affected Class)  or Required Australian Lenders (if the Australian Lenders are the adversely affected Class);   (ix) amend or modify the protections afforded to an SPC pursuant to the  provisions of Section 9.04(g) without the written consent of such SPC;   (x) amend or modify Section 7.05 or any Security Document in a  manner that results in the Bilateral Obligations secured by such Security Document no  longer being secured thereby on at least an equal and ratable basis with the principal of the  Loans, or amend or otherwise change the definition of “Obligations”, in each case if the  Bilateral Lender is adversely affected by such amendment, modification or change, without  the written consent of the Bilateral Lender; or  (xi) prior to the occurrence of any Event of Default under Sections  7.01(g) or 7.01(h), (x) subordinate the Liens on the Collateral securing the Obligations to  the Liens securing any other Indebtedness or other obligations in any transaction or series  of related transactions or (y) subordinate any of the Obligations in contractual right of  payment to any other Indebtedness or other obligations in any transaction or series of  related transactions (in each case of clauses (x) and (y), other than in connection with (1)  any Indebtedness that is expressly permitted by the Loan Documents as in effect on the  Closing Date (or as later amended in connection with an unrelated transaction) to be  secured by a lien on the Collateral that is senior to the Liens securing the Obligations, (2)  any “debtor-in-possession” financing or the use of the Collateral in any proceeding under  any Insolvency Law and/or (3) any other financing, in the case of this clause (3) with  respect to which each Lender under this Agreement is offered the opportunity to provide  such financing on the same terms and conditions), in each case without the consent of each  adversely affected Lender (any such other Indebtedness or other obligations referred to in  clause (x) or (y) above, to which such Liens securing any of the Obligations or such  Obligations, as applicable, are subordinated, “Senior Indebtedness”);  





 






  170  US-DOCS\125501258.12  provided, further, that no such agreement shall amend, modify or otherwise affect the rights or  duties of an Agent, an Issuing Bank or a Swing Line Lender hereunder or under any other Loan  Document without the prior written consent of such Agent, Issuing Bank or Swing Line Lender,  respectively.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to  approve or disapprove any amendment, waiver or consent hereunder or under any other Loan  Document (and any amendment, waiver or consent which by its terms requires the consent of all  Lenders, all Lenders or a majority in interest of Lenders under any Facility or each affected Lender  may be effected with the consent of the applicable Lenders other than Defaulting Lender); provided  that any such amendment, waiver or consent referred to in clause (b)(i), (ii) or (iii) above that, but  for this sentence, would require the prior written consent of such Defaulting Lender, will continue  to require the consent of such Defaulting Lender; and provided further that any such amendment,  waiver or consent requiring the consent of all Lenders, such Lender or each affected Lender that  by its terms affects any Defaulting Lender more adversely than any other Lender whose consent  is so required shall require the consent of such Defaulting Lender.  No Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as  a result of the existence of obligations owed to it under Hedging Agreements, Banking Services  Obligations or the Bilateral Obligations.  Notwithstanding anything to the contrary contained in this Section 9.08 or any other provision of  this Agreement or any other Loan Document, (A) the Security Documents and related documents  in connection with this Agreement and the other Loan Documents may be in a form reasonably  determined by the Administrative Agent and the Collateral Agent and may be, together with this  Agreement, amended, supplemented and waived with the consent of the Administrative Agent and  the Collateral Agent at the request of the Parent Borrower without the need to obtain the consent  of any other Lender if such amendment, supplement or waiver is delivered in order (i) to comply  with local law or advice of local counsel, or (ii) to cause such Security Documents or other  documents to be consistent with this Agreement and the other Loan Documents and (B) this  Agreement and any other Loan Document may be amended solely with the consent of the  Administrative Agent and the Parent Borrower without the need to obtain the consent of any other  Lender if such amendment is consummated in order (x) to correct or cure any ambiguities, errors,  omissions, mistakes, inconsistencies or defects jointly identified by the Parent Borrower and the  Administrative Agent, (y) to effect administrative changes of a technical or immaterial nature or  (z) to fix incorrect cross-references or similar inaccuracies in this Agreement or the applicable  Loan Document; provided that, in each case, the Administrative Agent shall have notified the  Lenders of such amendment and the Required Lenders shall not have objected in writing to such  amendment within five Business Days of notice thereof.   SECTION 9.09 Interest Rate Limitation.  Regardless of any provisions contained in  this Agreement or in any other Loan Documents, the Lenders shall never be deemed to have  contracted for or be entitled to receive, collect or apply as interest on any Loan or participation in  any L/C Disbursement any amount in excess of the maximum lawful rate (the “Maximum Rate”),  and in the event any Lender ever receives, collects or applies as interest (whether termed interest  herein or deemed to be interest by operation of law or judicial determination) any such excess, or  if an acceleration of the maturities of the Loans or if any prepayment by any Borrower results in  





 






  171  US-DOCS\125501258.12  such Borrower having paid any interest in excess of the Maximum Rate, such amount which would  be excessive interest shall be deemed to be a partial prepayment of principal and applied to the  reduction of the unpaid principal balance of the Loans for which such excess was received,  collected or applied, and, if the principal amount of the Obligations is paid in full, any remaining  excess shall forthwith be paid to the Applicable Borrower.  All sums paid or agreed to be paid to  the Lenders for the use, forbearance or detention of the Obligations evidenced by this Agreement  shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread, in  equal or unequal parts, throughout the full term of such Obligations until payment in full so that  the rate or amount of interest on account of such indebtedness does not exceed the Maximum Rate.   In determining whether or not the interest paid or payable under any specific contingency exceeds  the Maximum Rate of interest permitted by law, the Borrowers and the Lenders shall, to the  maximum extent permitted under applicable law, (i) characterize any non-principal payment as an  expense, fee or premium, rather than as interest; and (ii) exclude voluntary prepayments and the  effect thereof; and (iii) compare the total amount of interest contracted for, charged or received  with the total amount of interest which could be contracted for, charged or received throughout the  entire contemplated term of the Loans at the Maximum Rate.  SECTION 9.10 Entire Agreement.  This Agreement, the other Loan Documents and  the Fee Letter 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.    SECTION 9.11 WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY  EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED  BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT  OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION DIRECTLY OR  INDIRECTLY ARISING OUT OF, UNDER OR IN ANY CONNECTION WITH THIS  AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS AND WHETHER FOUNDED  IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND  CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION  SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY  TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS  SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE  SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.  EACH  PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY  OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT  SUCH OTHER PARTY 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, AS APPLICABLE, BY, AMONG OTHER THINGS,  THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.  SECTION 9.12 Severability.  In the event any one or more of the provisions contained  in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable  in any respect, the validity, legality and enforceability of the remaining provisions contained herein  and therein shall not in any way be affected or impaired thereby (it being understood that the  invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the  





 






  172  US-DOCS\125501258.12  validity of such provision in any other jurisdiction).  The parties shall endeavor in good-faith  negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the  economic effect of which comes as close as possible to that of the invalid, illegal 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 9.12, if and to the extent that the enforceability of any provisions in this Agreement  relating to Defaulting Lenders shall be limited by Insolvency Laws, as determined in good faith  by an Agent or Issuing Bank, as applicable, then such provisions shall be deemed to be in effect  only to the extent not so limited.  SECTION 9.13 Counterparts.  This Agreement may be executed in counterparts (and  by different parties hereto on different counterparts), each of which shall constitute an original but  all of which when taken together shall constitute a single contract, and shall become effective as  provided in Section 9.03.  Delivery of an executed signature page to this Agreement by facsimile  transmission or by electronic communication (e-mail) shall be as effective as delivery of a  manually signed counterpart of this Agreement. The words “execution,” “execute”, “signed,”  “signature,” and words of like import in or related to any document to be signed in connection  with this Agreement or any other Loan Document 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 Agents, or the keeping  of records in electronic form, each of which shall be of the same legal effect, validity or  enforceability as a manually executed signature or the use of a paper based recordkeeping system,  as the case may be, to the extent and as provided for in any applicable law, including the Federal  Electronic Signatures in Global and National Commerce Act, the New York State Electronic  Signatures and Records Act, or any other similar state laws based on the Uniform Electronic  Transactions Act.  SECTION 9.14 Headings.  Article and Section headings and the Table of Contents used  herein are for convenience of reference only, are not part of this Agreement and are not to affect  the construction of, or to be taken into consideration in interpreting, this Agreement.  SECTION 9.15 Jurisdiction; Consent to Service of Process.  (a) Any legal action or  proceeding with respect to this Agreement or any other Loan Document may be brought in the  courts of the State of New York sitting in the Borough of Manhattan, New York City or of the  United States for the Eastern District of such state, and by execution and delivery of this  Agreement, each of the Borrowers hereby irrevocably and unconditionally submits, for itself and  its property, to the nonexclusive jurisdiction of those courts.  Each of the parties hereto agrees that  a final judgment in any such action or proceeding shall be conclusive and may be enforced in other  jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this  Agreement shall affect any right that an Agent, an Issuing Bank or any Lender may otherwise have  to bring any action or proceeding relating to this Agreement or the other Loan Documents against  the Borrowers or their respective properties in the courts of any jurisdiction.  (b) Each of the Borrowers hereby irrevocably and unconditionally waives, to  the fullest extent it may legally and effectively do so, any objection which it may now or hereafter  have to the laying of venue of any suit, action or proceeding arising out of or relating to this  Agreement or the other Loan Documents in any such New York state or Federal court.  Each of  





 






  173  US-DOCS\125501258.12  the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of  an inconvenient forum to the maintenance of such action or proceeding in any such court.  (c) Each party to this Agreement irrevocably consents to service of process in  the manner provided for notices in Section 9.01.  Nothing in this Agreement will affect the right  of any party to this Agreement to serve process in any other manner permitted by law.  Each  Borrower waives personal service of any summons, complaint or other process, which may be  made by any other means permitted by the law of such state.   (d) Each Loan Party (other than the Parent Borrower) hereby irrevocably  appoints the Parent Borrower as its agent to receive on its behalf and on behalf of its property  service of copies of any summons or complaint or any other process which may be served in any  action.  Such service may be made by mailing or delivering a copy of such process to such Loan  Party in care of the Parent Borrower at the Parent Borrower’s address set forth in Section 9.01, and  each such Loan Party hereby irrevocably authorizes and directs the Parent Borrower to accept such  service on its behalf.    SECTION 9.16 Confidentiality.  Each of the Agents, the Issuing Banks and the Lenders  agrees to maintain, and cause their respective Affiliates to maintain, the confidentiality of the  Information (as defined below), except that Information may be disclosed (a) to its and its  Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other  advisors (it being understood that the persons to whom such disclosure is made will be informed  of the confidential nature of such Information and instructed to keep such Information  confidential), (b) to the extent requested by any regulatory authority (including any self-regulatory  authority, such as the National Association of Insurance Commissioners), (c) to the extent required  by applicable law or by any subpoena or similar legal process, except that the parties hereto agree  to the extent permitted they will not disclose information of the kind described by section 275(1)  of the PPSA (Australia) except as permitted by any other provision of this clause or required by  any other law or regulation, (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, pledgee under Section 9.04(f) or Participant in, or any  prospective assignee of, pledgee under Section 9.04(f) or Participant in, any of its rights or  obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to  any swap or derivative transaction relating to the Loan Parties and their obligations, (g) with the  consent of the Parent Borrower or (h) to the extent such Information (x) becomes publicly available  other than as a result of a breach of this Section or (y) becomes available to any Agent, any Issuing  Bank or any Lender on a non-confidential basis from a source other than a Borrower.  For purposes  of this Section, “Information” shall mean all information received from any Loan Party relating to  any Loan Party or any of their respective businesses, other than any such information that is  available to an Agent, an Issuing Bank or any Lender on a non-confidential basis prior to disclosure  by any Loan Party, provided that, in the case of information received from a Loan Party after the  date hereof, such information is clearly identified at the time of delivery as confidential.  Any  person required to maintain the confidentiality of Information as provided in this Section shall be  considered to have complied with its obligation to do so if such person has exercised the same  





 






  174  US-DOCS\125501258.12  degree of care to maintain the confidentiality of such Information as such person would accord to  its own confidential information.  SECTION 9.17 Judgment Currency.  (a) The obligations of the Borrowers and the  other Loan Parties hereunder and under the other Loan Documents to make payments in U.S.  dollars, Canadian dollars or Australian dollars (the “Obligation Currency”) shall not be discharged  or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any  currency other than the Obligation Currency, except to the extent that such tender or recovery  results in the effective receipt by the Applicable Administrative Agent or a Lender or an Issuing  Bank of the full amount of the Obligation Currency expressed to be payable to such Administrative  Agent, Lender or Issuing Bank under this Agreement or the other Loan Documents.  If, for the  purpose of obtaining or enforcing judgment against a Borrower or any other Loan Party or in any  court or in any jurisdiction, it becomes necessary to convert into or from any currency other than  the Obligation Currency (such other currency being hereinafter referred to as the “Judgment  Currency”) an amount due in the Obligation Currency, the conversion shall be made at the  Canadian Dollar Equivalent, U.S. Dollar Equivalent or Australian Dollar Equivalent, or, in the  case of other currencies, the rate of exchange (as quoted by the Administrative Agent or if the  Administrative Agent does not quote a rate of exchange on such currency, by a known dealer in  such currency designated by the Administrative Agent) determined, in each case, as of the date  immediately preceding the day on which the judgment is given (such Business Day being  hereinafter referred to as the “Judgment Currency Conversion Date”).  (b) If there is a change in the rate of exchange prevailing between the Judgment  Currency Conversion Date and the date of actual payment of the amount due, each Borrower  covenants and agrees to pay, or cause to be paid, as a separate obligation and notwithstanding any  judgment, such additional amounts, if any (but in any event not a lesser amount), as may be  necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of  exchange prevailing on the date of payment, will produce the amount of the Obligation Currency  which could have been purchased with the amount of Judgment Currency stipulated in the  judgment or judicial award at the rate of exchange prevailing on the Judgment Currency  Conversion Date.  (c) For purposes of determining the Canadian Dollar Equivalent, U.S. Dollar  Equivalent or Australian Dollar Equivalent or rate of exchange for this Section, such amounts shall  include any premium and costs payable in connection with the purchase of the Obligation  Currency.  SECTION 9.18 Exculpation Provisions.  EACH OF THE PARTIES HERETO  SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT AND THE  OTHER LOAN DOCUMENTS AND AGREES THAT IT IS CHARGED WITH NOTICE AND  KNOWLEDGE OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS; THAT IT HAS IN FACT READ THIS AGREEMENT AND IS FULLY  INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS  AND EFFECTS OF THIS AGREEMENT; THAT IT HAS BEEN REPRESENTED BY  INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE  NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT AND THE  OTHER LOAN DOCUMENTS; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN  





 






  175  US-DOCS\125501258.12  ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND  THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT AND  THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY  INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER  PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY.  EACH PARTY HERETO  AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR  ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT AND  THE OTHER LOAN DOCUMENTS ON THE BASIS THAT THE PARTY HAD NO NOTICE  OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT  “CONSPICUOUS.”  SECTION 9.19 Payments Set Aside.  To the extent that any payment by or on behalf  of any Loan Party is made to any Agent, Issuing Bank or Lender, or any Agent, Issuing Bank or  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 such Agent, Issuing Bank or Lender in its  discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding  under any Insolvency 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 Issuing Bank severally agrees to pay to the Applicable Administrative Agent upon demand its  applicable share (without duplication) of any amount so recovered from or repaid by the  Applicable 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 applicable overnight rate from time to time  in effect, in the applicable currency of such recovery or payment.  The obligations of the Lenders  and the Issuing Bank under clause (b) of the preceding sentence shall survive the payment in full  of the Obligations and the termination of this Agreement.  SECTION 9.20 Termination.  This Agreement and each other Loan Document, and the  covenants and agreements set forth herein and therein, and, in the case of any Security Document,  all security interests and other Liens created thereunder, shall terminate upon the payment in full  of all principal of and any accrued interest on any Loan and all Fees and other amounts payable  under this Agreement, the termination or expiration of all Letters of Credit and the termination or  expiration of the Commitments; provided that the provisions of Sections 2.13, 2.15, 2.19, and 9.05  and Article VIII, and any other provision set forth herein or therein that by its terms survives the  termination of this Agreement or such other Loan Document, shall survive and remain in full force  and effect.  SECTION 9.21 Patriot Act Notice.  Each Lender hereby notifies each Borrower that  pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law  October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that  identifies such Borrower, which information includes the name and address of such Borrower and  other information that will allow such Lender to identify such Borrower in accordance with the  Patriot Act.  SECTION 9.22 Public Offer    





 






  176  US-DOCS\125501258.12  (a) Lead Arranger’s representations, warranties and undertakings.  The Lead  Arranger undertakes, represents and warrants to the Australian Loan Parties as follows:   (i) on behalf of the Australian Loan Parties, the Lead Arranger made  invitations to become a Lender under this Agreement to at least 10 persons, each of whom,  as at the date the relevant invitation is made, the relevant officers of the Lead Arranger  involved in the transaction on a day to day basis believe carries on the business of providing  finance or investing or dealing in securities in the course of operating in financial markets,  for the purposes of section 128F(3A)(a)(i) of the Australian Tax Act, and each of whom  has been disclosed to the Australian Loan Parties;  (ii) at least 10 of the persons to whom the Lead Arranger (on behalf of  the Australian Loan Parties) has made invitations referred to in paragraph (i) above are not,  as at the date the invitations are made, to the knowledge of the relevant officers of the Lead  Arranger involved in the transaction, Associates of any of the others of those 10 invitees,  the Lead Arranger or any Lender; and  (iii) the Lead Arranger has not made and will not make offers or  invitations referred to in paragraph (i) above to persons whom the relevant officers of the  Lead Arranger involved in the transaction know or suspect are Offshore Associates of the  Australian Loan Parties.   (b) Australian Loan Parties’ representations and warranties.  The Australian  Loan Parties represent and warrant that none of the potential offerees whose names were disclosed  to it by the Lead Arranger before the date of this Agreement were known or suspected by it to be  an Offshore Associate of it or an Associate of any other such offeree. The Lead Arranger shall not,  after the date of this Agreement, make an invitation to become a Lender under this Agreement to  any potential offeree unless and until (i) the Lead Arranger has disclosed the name of such potential  offeree to the Australian Loan Parties, and (ii) the Australian Loan Parties have confirmed to the  Lead Arranger and the Administrative Agents that such potential offeree is not known or suspected  by it to be an Offshore Associate of it. Each Australian Loan Party under this Agreement is a  member of the same “wholly-owned group” (as defined in the Australian Tax Act) or an Associate  of each other Australian Loan Party under this Agreement.  (c) Lenders’ representations and warranties.  Each Lender represents and  warrants to the Australian Loan Parties that, if it received an invitation under paragraph (a)(i)  above, at the time it received the invitation it was not an Offshore Associate of the Australian Loan  Parties and it was carrying on the business of providing finance, or investing or dealing in  securities, in the course of operating in financial markets.  (d) Information.  The Lead Arranger and each Lender will provide to the  Australian Loan Parties when reasonably requested any factual information in its possession or  which it is reasonably able to provide to assist the Australian Loan Parties to demonstrate (based  upon tax advice received by the Australian Loan Parties) that section 128F of the Australian Tax  Act has been satisfied where to do so will not, in the reasonable opinion of the Lead Arranger or  the Lenders, breach any law or regulation or any duty of confidence.  





 






  177  US-DOCS\125501258.12  (e) Cooperation if s128F requirement not satisfied.  If, for any reason, the  requirements of section 128F of the Australian Tax Act have not been satisfied in relation to  interest payable on Loans (except to an Offshore Associate of the Australian Loan Parties), then  on request by the Administrative Agents, the Lead Arranger or the Australian Loan Parties, each  party shall cooperate and take steps reasonably requested with a view to satisfying those  requirements in paragraph (a), where a Lender breaches paragraph (c) above, at the cost of that  Lender, or in all other cases, at the cost of the Australian Loan Parties.  (f) Section 128F syndication statement. The parties agree that this Agreement  is a “syndicated facility agreement” for the purposes of section 128F(11)(a) of the Australian Tax  Act.  SECTION 9.23 Keepwell.  The Parent Borrower hereby absolutely, unconditionally and  irrevocably undertakes to provide such funds or other support as may be needed from time to time  by each Guarantor to honor all of its obligations under its Guarantee in respect of Swap Obligations  (provided, however, that the Parent Borrower shall only be liable under this Section 9.23 for the  maximum amount of such liability that can be hereby incurred without rendering its obligations  under this Section 9.23, or otherwise under this Agreement, voidable under applicable law relating  to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations  of the Parent Borrower under this Section shall remain in full force and effect until the termination  of all Commitments and payment in full of all Obligations (other than contingent indemnification  obligations) and the expiration or termination of all Letters of Credit (other than Letters of Credit  as to which other arrangements satisfactory to the Applicable Administrative Agent and the  Applicable Issuing Bank have been made).  The Parent Borrower intends that this Section 9.23  constitute, and this Section 9.23 shall be deemed to constitute, a “keepwell, support, or other  agreement” for the benefit of each Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the  Commodity Exchange Act.  SECTION 9.24 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other  agreement, arrangement or understanding among any such parties, each party hereto acknowledges  that any liability of any Affected Financial Institution arising under any Loan Document, to the  extent such liability is unsecured, may be subject to the write-down and conversion powers of the  applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be  bound by:  (a) the application of any Write-Down and Conversion Powers by an Affected  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any  party hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if  applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent undertaking, or  





 






  178  US-DOCS\125501258.12  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 Affected Resolution Authority.  SECTION 9.25  Acknowledgment Regarding Any Supported QFCs.  To the extent  that the Loan Documents provide support, through a guarantee or otherwise, for any agreement or  instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported  QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the  Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the  Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations  promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC  and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan  Documents and any Supported QFC may in fact be stated to be governed by the laws of the State  of New York and/or of the United States or any other state of the United States):  In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such  Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or  under such Supported QFC and such QFC Credit Support, and any rights in property securing such  Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the  same extent as the transfer would be effective under the U.S. Special Resolution Regime if the  Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in  property) were governed by the laws of the United States or a state of the United States. In the  event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding  under a U.S. Special Resolution Regime, default rights under the Loan Documents that might  otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such default rights could  be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan  Documents were governed by the laws of the United States or a state of the United States. Without  limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with  respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect  to a Supported QFC or any QFC Credit Support.   [Remainder of this page intentionally left blank.  Signature pages follow.] 





 






  Signature Page to Syndicated Facility Agreement  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as  of the date first written above.    BORROWERS:      CIVEO CORPORATION    By:   /s/ Carolyn Stone     Name: Carolyn Stone  Title:   Senior Vice President, Chief Financial Officer  and Treasurer          CIVEO MANAGEMENT LLC    By:  /s/ Carolyn Stone     Name: Carolyn Stone  Title:   Senior Vice President, Chief Financial Officer  and Treasurer      CIVEO PTY LIMITED      /s/ Peter McCann     Signature of Director         Peter McCann      Name of Director      /s/ Vanessa Mackett     Signature of Director/Company Secretary         Vanessa Mackett     Name of Director/Company Secretary  





 






  Signature Page to Syndicated Facility Agreement        ROYAL BANK OF CANADA,   as Administrative Agent, U.S. Collateral Agent,  Canadian Administrative Agent and Canadian Collateral  Agent      By:    /s/ Yvonne Brazier    Name: Yvonne Brazier  Title:  Manager, Agency    





 






  Signature Page to Syndicated Facility Agreement   RBC EUROPE LIMITED,   as Australian Administrative Agent, Australian  Collateral Agent and an Issuing Bank     By:    /s/ Johnson Tse     Name: Johnson Tse  Title: Authorized Signatory    





 






  Signature Page to Syndicated Facility Agreement   ROYAL BANK OF CANADA, as a U.S. Lender, the  U.S. Swing Line Lender and an Issuing Bank     By:    /s/ Jay T. Sartain     Name: Jay T. Sartain  Title:  Authorized Signatory    





 






  Signature Page to Syndicated Facility Agreement  ROYAL BANK OF CANADA, as a Canadian Lender,  the Canadian Swing Line Lender and an Issuing Bank      By:    /s/ Mike Gaudet     Name: Mike Gaudet  Title: Authorized Signatory    





 






    Signature Page to Syndicated Facility Agreement  ROYAL BANK OF CANADA, as an Australian Lender  and an Issuing Bank       By:    /s/ Marcus Rayment    Name: Marcus Rayment  Title:  Director, Corporate Banking    





 






    Signature Page to Syndicated Facility Agreement  HSBC BANK CANADA, as a Canadian Lender      By:    /s/ Sean Cochrane     Name: Sean Cochrane  Title:  Director, Energy Financing      By:    /s/ Bruce Robinson    Name: Bruce Robinson  Title:  Vice President, Energy Financing      





 






    Signature Page to Syndicated Facility Agreement  For and on behalf of THE HONGKONG AND  SHANGHAI BANKING CORPORATION LIMITED,  SYDNEY BRANCH as an Australian Lender, by its  duly authorized attorney pursuant to a Power of attorney.      By:    /s/ Nadia Ladak     Name: Nadia Ladak  Title:  Country of International Subsidiary Banking      





 






    Signature Page to Syndicated Facility Agreement  BANK OF MONTREAL,  as a Canadian Lender      By:    /s/ Kirk Phillips     Name: Kirk Phillips  Title:   Director      By:    /s/ Nicholas Power    Name: Nicholas Power  Title:   Managing Director      





 






    Signature Page to Syndicated Facility Agreement  BANK OF MONTREAL, acting via its Chicago  Branch, as a U.S. Lender      By:    /s/ Laura Ullman     Name: Laura Ullman  Title:   Director      





 






    Signature Page to Syndicated Facility Agreement  THE TORONTO-DOMINION BANK, as a Canadian  Lender      By:    /s/ Vanessa Cheung    Name: Vanessa Cheung  Title:  Director, National Accounts      By:    /s/ Jenny Kerr     Name: Jenny Kerr  Title:  Manager Commercial Credit, National Accounts      





 






    Signature Page to Syndicated Facility Agreement  National Bank of Canada, as an Australian Lender and  Canadian Lender      By:    /s/ Darrell Stelmack    Name: Darrell Stelmack  Title: Managing Director, Energy Services      By:    /s/ Jason Anderson    Name: Jason Anderson  Title: Director, Energy Services      





 






    Signature Page to Syndicated Facility Agreement  ATB Financial, as a Canadian Lender      By:    /s/ Amish Patel     Name: Amish Patel  Title: Director, Capital Markets      By:    /s/ Davinder Jhutty    Name: Davinder Jhutty  Title: Associate Director      





 






    Signature Page to Syndicated Facility Agreement  CANADIAN WESTERN BANK, as a Canadian Lender      By:    /s/ Kuno Ryckborst    Name: Kuno Ryckborst  Title:   Senior Manager, Oil & Gas Lending      By:    /s/ Stan Seto     Name: Stan Seto  Title:   AVP, Corporate Lending      





 






    Schedule 2.01  US-DOCS\125501258.12    SCHEDULE 2.01  Lenders and Commitments/Loans  (all amounts in U.S. dollars, except noted otherwise in parentheses)  Bank  U.S. Revolving  Commitment  Canadian  Revolving  Commitment  Australian  Revolving  Commitment  Canadian Term  Loans (C$) Total  Commitments/Loans  Royal Bank of  Canada 5,000,000.00 17,141,500.00 15,000,000.00 18,571,428.00 51,998,642.40  HSBC Bank  Canada  0.00 23,429,000.00 0.00 18,214,286.00 38,000,428.80  The Hong Kong  and Shanghai  Banking  Corporation  Limited, Sydney  Branch  0.00 0.00 13,000,000.00 0.00 13,000,000.00  Bank of Montreal 5,000,000.00 31,429,000.00  0.00 18,214,286.00 51,000,428.80  The Toronto- Dominion Bank  0.00 28,929,000.00 0.00 14,464,286.00 40,500,428.80  National Bank of  Canada  0.00 15,500,000.00 7,000,000.00 11,250,000.00 31,500,000.00  ATB Financial  0.00  22,500,000.00  0.00 11,250,000.00 31,500,000.00  Canadian Western  Bank  0.00 16,071,500.00 0.00 8,035,714.00 22,500,071.20  TOTAL $10,000,000.00 $155,000,000.00 $35,000,000.00 C$100,000,000.00 $280,000,000.00  *Assumes USD/CAD FX rate of 1.25x  





 






    Schedule 2.04  US-DOCS\125501258.12  SCHEDULE 2.04  Amortization    Canadian Term Loans    Date Amount  September 30, 2021 C$10,000,000.00  December 31, 2021 C$10,000,000.00  March 31, 2022 C$10,000,000.00  June 30, 2022 C$10,000,000.00  September 30, 2022 C$10,000,000.00  December 31, 2022 C$10,000,000.00  March 31, 2023 C$10,000,000.00  June 30, 2023 C$10,000,000.00  September 30, 2023 C$10,000,000.00  December 31, 2023 C$10,000,000.00  





 






    Schedule 2.21  US-DOCS\125501258.12  SCHEDULE 2.21  L/C Issuance Limits  (all amounts in U.S. dollars)  Issuing Bank L/C Issuance Limits Facility  Royal Bank of Canada $10,000,000.00 U.S. Revolving Facility  Royal Bank of Canada $10,000,000.00 Australian Revolving Facility  Royal Bank of Canada $20,000,000.00 Canadian Revolving Facility