bofa-globelife2021revolv






14235438v5 27112.00011    Execution Version    Deal CUSIP Number: 37959UAE6  Revolving Credit CUSIP Number: 37959UAF3        $750,000,000  AMENDED AND RESTATED CREDIT AGREEMENT  Dated as of September 30, 2021  among  GLOBE LIFE INC.,  as the Borrower,  TMK RE, LTD.,  as a Loan Party,  THE LENDERS PARTY HERETO,  BANK OF AMERICA, N.A.,  as Administrative Agent, Swing Line Lender and L/C Administrator,  U.S. BANK NATIONAL ASSOCIATION  and  WELLS FARGO BANK, NATIONAL ASSOCIATION  as Co-Syndication Agents    _________________________  BOFA SECURITIES, INC.,  U.S. BANK NATIONAL ASSOCIATION  and  WELLS FARGO SECURITIES, LLC  as Joint Lead Arrangers and Joint Book Runners  BBVA USA,  REGIONS BANK  and  TRUIST BANK  as Co-Documentation Agents    





 






14235438v5 27112.00011    TABLE OF CONTENTS    Page     -i-     ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ................................................. 1  1.01 Defined Terms ....................................................................................................... 1  1.02 Other Interpretive Provisions ............................................................................... 30  1.03 Accounting Terms. ............................................................................................... 31  1.04 Rounding .............................................................................................................. 32  1.05 Times of Day........................................................................................................ 32  1.06 Letter of Credit Amounts ..................................................................................... 32  1.07 Divisions .............................................................................................................. 32  1.08 Rates ..................................................................................................................... 32  ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS .................................. 32  2.01 Loans .................................................................................................................... 32  2.02 Borrowings, Conversions and Continuations of Loans. ...................................... 33  2.03 Letters of Credit. .................................................................................................. 34  2.04 Swing Line Loans. ............................................................................................... 48  2.05 Prepayments. ........................................................................................................ 51  2.06 Termination or Reduction of Commitments ........................................................ 52  2.07 Repayment of Loans. ........................................................................................... 52  2.08 Interest.................................................................................................................. 52  2.09 Fees ...................................................................................................................... 53  2.10 Computation of Interest and Fees ........................................................................ 54  2.11 Evidence of Debt.................................................................................................. 54  2.12 Payments Generally; Administrative Agent’s Clawback. ................................... 55  2.13 Sharing of Payments by Lenders ......................................................................... 57  2.14 Increase in Commitments. ................................................................................... 57  2.15 Defaulting Lenders............................................................................................... 59  2.16 Extension of Maturity Date. ................................................................................. 62  2.17 ESG Amendment ................................................................................................. 64  2.18 Sustainability Coordinator ................................................................................... 64  ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY .................................... 64  3.01 Taxes. ................................................................................................................... 64  3.02 Illegality ............................................................................................................... 68  3.03 Inability to Determine Rates ................................................................................ 69  3.04 Increased Costs; Reserves on Eurodollar Rate Loans. ......................................... 72  3.05 Compensation for Losses ..................................................................................... 73  3.06 Mitigation Obligations; Replacement of Lenders. ............................................... 74  3.07 Survival ................................................................................................................ 74  ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ........................... 75  4.01 Conditions of Effective Date ............................................................................... 75  4.02 Conditions to all Credit Extensions ..................................................................... 77  





 






14235438v5 27112.00011    TABLE OF CONTENTS  (continued)  Page     -ii-     ARTICLE V REPRESENTATIONS AND WARRANTIES ................................................. 78  5.01 Existence, Qualification and Power; Compliance with Laws .............................. 78  5.02 Authorization; No Contravention ........................................................................ 78  5.03 Governmental Authorization; Other Consents..................................................... 78  5.04 Binding Effect ...................................................................................................... 79  5.05 Financial Statements; No Material Adverse Effect. ............................................ 79  5.06 Litigation .............................................................................................................. 79  5.07 No Default ............................................................................................................ 79  5.08 Ownership of Property; Liens .............................................................................. 80  5.09 Insurance .............................................................................................................. 80  5.10 Taxes .................................................................................................................... 80  5.11 ERISA Compliance. ............................................................................................. 80  5.12 Subsidiaries; Equity Interests ............................................................................... 81  5.13 Margin Regulations; Investment Company Act. ................................................. 81  5.14 Disclosure ............................................................................................................ 81  5.15 Compliance with Laws ........................................................................................ 82  5.16 Insurance Licenses ............................................................................................... 82  5.17 First Priority Interest ............................................................................................ 82  5.18 OFAC; Anti-Corruptions Laws............................................................................ 82  5.19 Covered Entities ................................................................................................... 82  ARTICLE VI AFFIRMATIVE COVENANTS ....................................................................... 83  6.01 Financial Statements ............................................................................................ 83  6.02 Certificates; Other Information ............................................................................ 83  6.03 Notices ................................................................................................................. 86  6.04 Payment of Taxes ................................................................................................. 87  6.05 Preservation of Existence, Etc ............................................................................. 87  6.06 Maintenance of Properties ................................................................................... 87  6.07 Maintenance of Insurance .................................................................................... 87  6.08 Compliance with Laws ........................................................................................ 87  6.09 Books and Records .............................................................................................. 87  6.10 Inspection Rights ................................................................................................. 88  6.11 Use of Proceeds.................................................................................................... 88  6.12 Further Assurances............................................................................................... 88  6.13 Collateral Requirements....................................................................................... 88  6.14 Conduct of Insurance Business ............................................................................ 89  6.15 Anti-Corruption Laws; Sanctions ........................................................................ 89  ARTICLE VII NEGATIVE COVENANTS .............................................................................. 89  7.01 Liens ..................................................................................................................... 89  7.02 Subsidiary Indebtedness....................................................................................... 89  7.03 Acquisitions ......................................................................................................... 90  





 






14235438v5 27112.00011    TABLE OF CONTENTS  (continued)  Page     -iii-     7.04 Fundamental Changes .......................................................................................... 90  7.05 Dispositions.......................................................................................................... 90  7.06 Use of Proceeds.................................................................................................... 90  7.07 Financial Covenants. ............................................................................................ 91  7.08 Sanctions .............................................................................................................. 91  7.09 Anti-Corruption Laws .......................................................................................... 91  ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES .................................................... 91  8.01 Events of Default ................................................................................................. 91  8.02 Remedies Upon Event of Default ........................................................................ 94  8.03 Application of Funds............................................................................................ 94  ARTICLE IX ADMINISTRATIVE AGENT .......................................................................... 96  9.01 Appointment and Authority. ................................................................................ 96  9.02 Rights as a Lender ................................................................................................ 96  9.03 Exculpatory Provisions ........................................................................................ 96  9.04 Reliance by Administrative Agent ....................................................................... 97  9.05 Delegation of Duties ............................................................................................ 98  9.06 Resignation of Administrative Agent .................................................................. 98  9.07 Non-Reliance on Administrative Agent and Other Lenders ................................ 99  9.08 No Other Duties, Etc .......................................................................................... 100  9.09 Administrative Agent May File Proofs of Claim ............................................... 100  9.10 No Other Duties, etc .......................................................................................... 100  9.11 Certain ERISA Matters. ..................................................................................... 101  9.12 Recovery of Erroneous Payments ...................................................................... 102  ARTICLE X MISCELLANEOUS ........................................................................................ 102  10.01 Amendments, Etc ............................................................................................... 102  10.02 Notices; Effectiveness; Electronic Communication. ......................................... 104  10.03 No Waiver; Cumulative Remedies; Enforcement.............................................. 106  10.04 Expenses; Indemnity; Damage Waiver. ............................................................. 106  10.05 Payments Set Aside............................................................................................ 109  10.06 Successors and Assigns; Participations. ............................................................ 109  10.07 Confidentiality ................................................................................................... 113  10.08 Right of Setoff.................................................................................................... 115  10.09 Interest Rate Limitation ..................................................................................... 115  10.10 Counterparts; Integration; Effectiveness ............................................................ 115  10.11 Survival of Representations and Warranties ...................................................... 116  10.12 Severability ........................................................................................................ 116  10.13 Replacement of Lenders .................................................................................... 117  10.14 Governing Law; Jurisdiction; Etc. ..................................................................... 117  10.15 Waiver of Jury Trial ........................................................................................... 119  





 






14235438v5 27112.00011    TABLE OF CONTENTS  (continued)  Page     -iv-     10.16 Exceptions to Covenants .................................................................................... 119  10.17 No Strict Construction ....................................................................................... 119  10.18 USA PATRIOT Act Notice ............................................................................... 119  10.19 Guaranty. ............................................................................................................ 119  10.20 No Advisory or Fiduciary Responsibility .......................................................... 123  10.21 ENTIRE AGREEMENT .................................................................................... 124  10.22 Amendment and Restatement; No Novation ..................................................... 124  10.23 Acknowledgment and Consent to Bail-In of Affected Financial Institutions.... 124  10.24 Acknowledgement Regarding Any Supported QFCs ........................................ 125  





 






14235438v5 27112.00011       -v-     SCHEDULES  1.01 Collateral Advance Rates  2.01 Commitments and Applicable Percentages  2.03 Existing Letters of Credit  5.05 Supplement to Interim Financial Statements  5.06 Existing Litigation  5.12 Subsidiaries and Other Equity Investments  5.16 Insurance Licenses  10.02 Administrative Agent’s Office, Certain Addresses for Notices  EXHIBITS  Form of  A Assignment and Assumption  B Compliance Certificate  C Loan Notice  D Revolving Note  E Several Letter of Credit  F Swing Line Loan Notice  G Swing Line Note  H Borrowing Base Certificate  I Tax Compliance Certificates  





 






14235438v5 27112.00011        AMENDED AND RESTATED CREDIT AGREEMENT  This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered  into as of September 30, 2021, among each lender from time to time party hereto (collectively, the  “Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A., as Administrative Agent,  Swing Line Lender and L/C Administrator, GLOBE LIFE INC., a Delaware corporation (the  “Borrower”), and TMK RE, LTD., a Bermuda reinsurance corporation (“TMK”).  The Loan Parties, the lenders parties thereto and the Administrative Agent entered into that  certain Credit Agreement, dated August 24, 2020 (the “Existing Credit Agreement”). The Loan  Parties have requested, and subject to the terms and conditions set forth in this Agreement, the  Administrative Agent and the Lenders have agreed to amend and restate the Existing Credit  Agreement.  In consideration of the mutual covenants and agreements herein contained, the parties  hereto covenant and agree as follows:  ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS  1.01 Defined Terms.  As used in this Agreement, the following terms shall have the  meanings set forth below:  “Acquisition” means the acquisition by any Person of (a) a majority of the Equity Interests  of another Person, (b) all or substantially all of the assets of another Person or (c) all or  substantially all of a line of business of another Person, in each case (i) whether or not involving a  merger or a consolidation with such other Person and (ii) whether in one transaction or a series of  related transactions.  “Adjusted Fair Market Value” means with respect to any Eligible Collateral, an amount  equal to the product of the Fair Market Value of such Eligible Collateral and the applicable  percentage with respect to such Eligible Collateral as set forth on Schedule 1.01.  “Administrative Agent” means Bank of America in its capacity as administrative agent  under any of the Loan Documents, or any successor administrative agent.  “Administrative Agent’s Office” means the Administrative Agent’s address and, as  appropriate, account as set forth on Schedule 10.02 or such other address or account as the  Administrative Agent may from time to time notify to the Loan Parties and the Lenders.  “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied  by the Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.  “Affiliate” means, with respect to any Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with  





 






14235438v5 27112.00011       2     the Person specified, and in any event shall include (a) any officer, director or general partner of  such Person and (b) any Person, or Affiliate of such Person that, directly or indirectly, beneficially  owns 10% or more of the voting Equity Interests of the Person specified.  “Aggregate Commitments” means the Commitments of all the Lenders.  As of the Effective  Date, the Aggregate Commitments are $750,000,000.  “Agreement” has the meaning specified in the introductory paragraph hereto.  “Annual Statement” means the annual statutory financial statement of any Insurance  Subsidiary required to be filed with the insurance commissioner (or similar authority) of its  jurisdiction of incorporation, which statement shall be in the form required by such Insurance  Subsidiary’s jurisdiction of incorporation or, if no specific form is so required, in the form of  financial statements recommended by the NAIC to be used for filing annual statutory financial  statements and shall contain the type of information recommended by the NAIC to be disclosed  therein, together with all exhibits or schedules filed therewith.  “Applicable Issuing Party” means (a) in the case of Fronted Letters of Credit, the Fronting  Bank which issued such Fronted Letter of Credit and (b) in the case of Several Letters of Credit,  the L/C Administrator.  “Applicable Law” means in respect of any Person, all provisions of Laws applicable to  such Person, and all orders and decrees of all courts and determinations of arbitrators applicable  to such Person.  “Applicable Percentage” means, with respect to any Lender at any time, the percentage  (carried out to the ninth decimal place) of the Aggregate Commitments represented by such  Lender’s Commitment at such time, subject to adjustment as provided in Section 2.14.  If the  commitment of each Lender to make Loans and issue Several Letters of Credit, the obligation of  the Fronting Banks to issue Fronted Letters of Credit, and the commitment of each L/C Issuer to  make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate  Commitments have expired, then the Applicable Percentage of each Lender shall be determined  based on the Applicable Percentage of such Lender most recently in effect, giving effect to any  subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite  the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which  such Lender becomes a party hereto, as applicable.  “Applicable Rate” means the following percentages per annum, based upon the Debt  Rating set forth below:  





 






14235438v5 27112.00011       3     Pricing Level  Debt Ratings  S&P/Moody’s Facility Fee  Eurodollar  Rate &  Letter of  Credit Fee Base Rate All-In Drawn  1 ≥ A+/A1 0.08% 0.795% 0.0% 0.875%  2 A/A2 0.10% 0.90% 0.0% 1.00%  3 A-/A3 0.125% 1.00% 0.0% 1.125%  4 BBB+/Baa1 0.15% 1.10% 0.10% 1.25%  5 < BBB/Baa2 0.20% 1.30% 0.30% 1.50%    “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for  such Benchmark that is or may be used for determining the length of an Interest Period or  (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as  applicable, pursuant to this Agreement as of such date.  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a  Lender.  “Assignment and Assumption” means an assignment and assumption entered into by a  Lender and an assignee with the consent of any party whose consent is required by  Section 10.06(b), and accepted by the Administrative Agent, in substantially the form of Exhibit A  or any other form approved by the Administrative Agent.  “Attributable Indebtedness” means, on any date, in respect of any capital or finance lease  of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person  prepared as of such date in accordance with GAAP.  “Audited Financial Statements” means the audited consolidated balance sheet of the  Borrower and its Subsidiaries for the fiscal year ended December 31, 2020, and the related  consolidated statements of income or operations, shareholders’ equity and cash flows for such  fiscal year of the Borrower and its Subsidiaries, including the notes thereto.  “Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).  “Availability Period” means the period from and including the Effective Date to the earliest  of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to  Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and  of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  





 






14235438v5 27112.00011       4     “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law, regulation rule or requirement for such EEA Member Country from  time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the  United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time)  and any other law, regulation or rule applicable in the United Kingdom relating to the resolution  of unsound or failing banks, investment firms or other financial institutions or their affiliates (other  than through liquidation, administration or other insolvency proceedings).  “Bank of America” means Bank of America, N.A. and its successors.  “Bank of America Fee Letter” means that certain letter agreement, dated as of September  3, 2021, among the Borrower, Bank of America, N.A. and BofA Securities, Inc.  “Base Rate” means, as of any date of determination, a fluctuating rate of interest per annum  equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate for  such day plus 0.50% and (c) the Eurodollar Rate for such day plus 1.00%; provided, however, that  in no event shall the Base Rate as of any date of determination be less than 0%.  If the Base Rate  is being used as an alternate rate of interest pursuant to Section 3.03, then the Base Rate shall be  the greater of clauses (a) and (b) above and shall be determined without reference to clause (c)  above.  “Base Rate Loan” means a Loan that bears interest based on the Base Rate.  “Benchmark” means, initially, LIBOR; provided that if a replacement of the Benchmark  has occurred pursuant to Section 3.03(c) then “Benchmark” means the applicable Benchmark  Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark  rate. Any reference to “Benchmark” shall include, as applicable, the published component used in  the calculation thereof.  “Benchmark Replacement” means:  (1) For purposes of Section 3.03(c)(i), the first alternative set forth below that  can be determined by the Administrative Agent:  (a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points)  for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points)  for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points)  for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis  points) for an Available Tenor of twelve-months’ duration, or  (b) the sum of: (i) Daily Simple SOFR and (ii) 0.11448% (11.448 basis  points);   provided that, if initially LIBOR is replaced with the rate contained in clause (b) above  (Daily Simple SOFR plus the applicable spread adjustment) and subsequent to such  replacement, the Administrative Agent determines that Term SOFR has become available  and is administratively feasible for the Administrative Agent in its sole discretion, and the  





 






14235438v5 27112.00011       5     Administrative Agent notifies the Borrower and each Lender of such availability, then from  and after the beginning of the Interest Period, relevant interest payment date or payment  period for interest calculated, in each case, commencing no less than thirty (30) days after  the date of such notice, the Benchmark Replacement shall be as set forth in clause (a)  above; and  (2) For purposes of Section 3.03(c)(ii), the sum of (a) the alternate benchmark  rate and (b) an adjustment (which may be a positive or negative value or zero), in each  case, that has been selected by the Administrative Agent and the Borrower as the  replacement Benchmark giving due consideration to any evolving or then-prevailing  market convention, including any applicable recommendations made by a Relevant  Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;   provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2)  above would be less than 0%, the Benchmark Replacement will be deemed to be 0% for  the purposes of this Agreement and the other Loan Documents.  Any Benchmark Replacement shall be applied in a manner consistent with market practice;  provided that to the extent such market practice is not administratively feasible for the  Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise  reasonably determined by the Administrative Agent.   “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the  definition of “Base Rate,” 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, the applicability and length of  lookback periods, the applicability of breakage provisions, and other technical, administrative or  operational matters) that the Administrative Agent decides may be appropriate 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 is reasonably necessary in connection with the administration of  this Agreement and the other Loan Documents).  “Benchmark Transition Event” means, with respect to any then-current Benchmark other  than LIBOR, the occurrence of a public statement or publication of information by or on behalf of  the administrator of the then-current Benchmark or a Governmental Authority with jurisdiction  over such administrator announcing or stating that all Available Tenors are or will no longer be  representative, or made available, or used for determining the interest rate of loans, or shall or will  otherwise cease, provided that, at the time of such statement or publication, there is no successor  administrator that is satisfactory to the Administrative Agent, that will continue to provide any  representative tenors of such Benchmark after such specific date.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  as required by the Beneficial Ownership Regulation.  





 






14235438v5 27112.00011       6     “Beneficial Ownership Regulation” means 31 CFR § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is  subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or  (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for  purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit  plan” or “plan”.  “Borrower” has the meaning specified in the introductory paragraph hereto.  “Borrower Materials” has the meaning specified in Section 6.02.  “Borrowing” means a Revolving Borrowing or a Swing Line Borrowing, as the context  may require.  “Borrowing Base” means, on any date of determination, an amount equal to the sum of the  Adjusted Fair Market Value of all Eligible Collateral on such date.  “Borrowing Base Certificate” means a certificate substantially in the form of Exhibit H  with such changes therein as the Administrative Agent may reasonably request from time to time.  “Business Day” means (a) except as set forth in clause (b) below, any day excluding  Saturday, Sunday and any day which is a legal holiday under the laws of the State of North  Carolina, the State of New York or is a day on which banking institutions located in such states  are authorized or required by law or other governmental action to close, and (b) with respect to all  notices, determinations, fundings and payments in connection with the Eurodollar Rate or any  Eurodollar Rate Loans, any day that is a Business Day described in clause (a) above and that is  also a day for trading by and between banks in Dollar deposits in the London interbank market.  “Cash” means U.S. money, U.S. currency or a Dollar credit balance in a Deposit Account  which is a Collateral Account, which money, currency, credit balance and Deposit Account are  free and clear of any claim or Lien of any Person other than the Administrative Agent or as  otherwise herein provided.  “Cash Collateralize” has the meaning specified in Section 2.03(g)(ii).  “Change in Law” means the occurrence, after the date of this Agreement, of any of the  following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in  any law, rule, regulation or treaty or in the administration, interpretation, implementation or  application thereof by any Governmental Authority or (c) the making or issuance of any request,  rule, guideline or directive (whether or not having the force of law) by any Governmental  Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall  Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives  thereunder or issued in connection therewith or in the implementation thereof and (ii) all requests,  rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel  Committee on Banking Supervision (or any successor or similar authority) or the United States or  foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to  be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.  





 






14235438v5 27112.00011       7     “Change of Control” means an event or series of events by which:  (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)  of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such  person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or  other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as  defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that  a person or group shall be deemed to have “beneficial ownership” of all securities that such  person or group has the right to acquire (such right, an “option right”), whether such right  is exercisable immediately or only after the passage of time), directly or indirectly, of 20%  or more of the Equity Interests of the Borrower entitled to vote for members of the board  of directors or equivalent governing body of the Borrower on a fully-diluted basis (and  taking into account all such Equity Interests that such person or group has the right to  acquire pursuant to any option right); or  (b) any “Change of Control” as defined in any Indebtedness of the Borrower or  any of its Subsidiaries having an aggregate principal amount (including undrawn  committed or available amounts and including amounts owing to all creditors under any  combined or syndicated credit arrangement) of more than $50,000,000 shall occur.  “Code” means the Internal Revenue Code of 1986, and the rules and regulations  promulgated thereunder.  “Co-Documentation Agents” means, collectively, BBVA USA, Regions Bank and Truist  Bank.  “Collateral” means, with respect to any Loan Party, all property and assets with respect to  which a security interest is purported to be granted in favor of the Administrative Agent pursuant  to a Security Agreement executed by such Loan Party.  “Collateral Account” means any account at Bank of America or other institution  satisfactory to the Administrative Agent, in its sole discretion, as to which Bank of America (or  such other institution), the Borrower and the Administrative Agent have entered into a Control  Agreement and in which the Administrative Agent has a perfected, first priority security interest.  “Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to  the Borrower pursuant to Section 2.01, (b) issue Several Letters of Credit and purchase  participations in L/C Obligations arising under Fronted Letters of Credit, and (c) purchase  participations in 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  heading Commitment or in the Assignment and Assumption or joinder agreement pursuant to  which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from  time to time in accordance with this Agreement.  “Communication” means this Agreement, any Loan Document and any document,  amendment, approval, consent, information, notice, certificate, request, statement, disclosure or  authorization related to any Loan Document.  





 






14235438v5 27112.00011       8     “Compliance Certificate” means a certificate substantially in the form of Exhibit B.  “Connection Income Taxes” means Other Connection Taxes that are imposed on or  measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.  “Consolidated Capitalization” means, at any date of determination, the sum of  (a) Consolidated Net Worth as at such date, plus (b) Consolidated Indebtedness as at such date,  plus (c) Subordinated Debt not to exceed 15% of Consolidated Capitalization.  “Consolidated Indebtedness” means the Indebtedness of the Borrower and its Subsidiaries  (excluding (a) any obligations in respect of Subordinated Debt not to exceed 15% of Consolidated  Capitalization and (b) all borrowings made by any Insurance Subsidiary from any FHLB to the  extent such borrowings are of the type customarily excluded from financial leverage by both S&P  and Moody’s in their evaluation of such Insurance Subsidiary or similarly positioned person)  determined on a consolidated basis in accordance with GAAP.   “Consolidated Net Worth” means, at any date of determination, the amount of  consolidated common and preferred shareholders’ equity of the Borrower and its Subsidiaries,  determined as at such date in accordance with GAAP; provided, however, that any “Accumulated  Other Comprehensive Income (Loss)” shown on a consolidated balance sheet of the Borrower and  its Subsidiaries prepared in accordance with GAAP shall be excluded when computing  Consolidated Net Worth.  “Contractual Obligation” means, as to any Person, any provision of any security issued by  such Person or of any agreement, instrument or other undertaking to which such Person is a party  or by which it or any of its property is bound.  “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the ability to exercise voting  power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative  thereto.  “Control Agreement” means an agreement between the Borrower, Bank of America and  the Administrative Agent with respect to any deposit or securities account of the Borrower in  which a security interest is purported to be granted to the Administrative Agent pursuant to the  Security Agreement in form and substance reasonably acceptable to the Administrative Agent.  “Corporate Debt Securities” means debt securities issued by Persons which are domiciled  in the United States or any State or other political subdivision thereof and which are not individuals  or governmental entities.  “Co-Syndication Agents” means, collectively, U.S. Bank National Association and Wells  Fargo Bank, National Association.  “Covered Entity” has the meaning specified in Section 10.24.  “Credit Extension” means each of the following:  (a) a Borrowing and (b) an L/C Credit  Extension.  





 






14235438v5 27112.00011       9     “Credit Party” has the meaning specified in Section 9.12.  “Daily Simple SOFR” with respect to any applicable determination date means the secured  overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New  York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve  Bank of New York’s website (or any successor source).  “Debt Rating” means, as of any date of determination, the rating as determined by either  S&P or Moody’s (collectively, the “Debt Ratings”) of the Borrower’s non-credit-enhanced, senior  unsecured long-term debt; provided that if a different Debt Rating is issued by each of the  foregoing rating agencies, then the higher of such Debt Ratings shall apply (with the Debt Rating  for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest),  unless there is a split in Debt Ratings of more than one level, in which case the Pricing Level that  is one level lower than the Pricing Level of the higher Debt Rating shall apply.  If at any time the  Borrower has a Debt Rating from either Moody’s or S&P but not from both Moody’s and S&P,  then the Pricing Level shall be based on the single available Debt Rating.  If at any time the  Borrower does not have a Debt Rating from Moody’s and does not have a Debt Rating from S&P,  then Pricing Level 5 shall apply.  If at any time Pricing Level 5 is applicable pursuant to the  preceding sentence, the Lenders will, at the request of the Borrower, enter into good faith  negotiations with the Borrower regarding amending this definition to refer to debt or corporate  credit ratings provided by one or more mutually satisfactory alternate debt or corporate credit  rating providers. Initially, the Applicable Rate shall be determined based upon the Debt Rating  specified in the certificate delivered pursuant to Section 4.01(a)(vii).  Thereafter, each change in  the Applicable Rate resulting from a publicly announced change in the Debt Rating shall be  effective during the period commencing on the date of the public announcement thereof and ending  on the date immediately preceding the effective date of the next such change.  “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other  liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,  rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the  United States or other applicable jurisdictions from time to time in effect and affecting the rights  of creditors generally.  “Default” means any event or condition that constitutes an Event of Default or that, with  the giving of any notice, the passage of time, or both, would be an Event of Default.  “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit  Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to  Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurodollar  Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any  Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with  respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.  “Defaulting Lender” means, subject to Section 2.15(g), any Lender that (a) has failed to  (i) fund all or any portion of the Revolving Loans, participations in Letters of Credit, payment  obligations under Several Letters of Credit or funded participations in Swing Line Loans required  to be funded by it hereunder within two Business Days of the date such Loans or participations  were required to be funded hereunder unless such Lender notifies the Administrative Agent and  





 






14235438v5 27112.00011       10     the Borrower in writing that such failure is the result of such Lender’s determination that one or  more conditions precedent to funding (each of which conditions precedent, together with any  applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay  to the Administrative Agent, any Fronting Bank, the Swing Line Lender or any other Lender any  other amount required to be paid by it hereunder (including in respect of its participation in Letters  of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified  the Borrower, the Administrative Agent, any Fronting Bank or the 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 Business Days after written request by the Administrative Agent or the  Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply  with its prospective funding obligations hereunder (provided that such Lender shall cease to be a  Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the  Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that  has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it  a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or  similar Person charged with reorganization or liquidation of its business or assets, including the  FDIC or any other state or federal regulatory authority acting in such a capacity or (iii) become  the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by  virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect  parent company thereof by a Governmental Authority so long as such ownership interest does not  result in or provide such Lender with immunity from the jurisdiction of courts within the United  States or from the enforcement of judgments or writs of attachment on its assets or permit such  Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts  or agreements made with such Lender.  Any determination by the Administrative Agent that a  Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be  conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting  Lender (subject to Section 2.15(g)) upon delivery of written notice of such determination to the  Borrower, each Fronting Bank, the Swing Line Lender and each Lender.  “Deposit Account” means a demand, time, savings, passbook or similar account  maintained by a Loan Party with Bank of America.  “Designated Jurisdiction” means any country or territory to the extent that such country or  territory itself is the subject of any Sanction.  “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition  (including any sale and leaseback transaction) of any property by any Person, including any sale,  assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable  or any rights and claims associated therewith.  “Dividends” means any dividend or other distribution (whether in cash, securities or other  property) with respect to any capital stock or other Equity Interest of the Borrower or any  Subsidiary.  





 






14235438v5 27112.00011       11     “Dollar” and “$” mean lawful money of the United States.  “Early Opt-in Effective Date” means, with respect to any 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.  “Early Opt-in Election” means the occurrence of:  (1) a determination by the Administrative Agent, or a notification by the  Borrower to the Administrative Agent that the Borrower has made a determination, that  U.S. dollar-denominated syndicated credit facilities currently being executed, or that  include language similar to that contained in Section 3.03(c), are being executed or  amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace  LIBOR, and   (2) the joint election by the Administrative Agent and the Borrower to replace  LIBOR with a Benchmark Replacement and the provision by the Administrative Agent of  written notice of such election to the Lenders.  “EEA Financial Institution” means (a) any credit institution or investment firm established  in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,  (b) any entity established in an EEA Member Country which is a parent of an institution described  in clause (a) of this definition, or (c) any financial institution established in an EEA Member  Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and  is subject to consolidated supervision with its parent;  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person  entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.  “Effective Date” means the first date all the conditions precedent in Section 4.01 are  satisfied or waived in accordance with Section 10.01.  “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them,  respectively, by 15 USC §7006, as it may be amended from time to time.  “Eligible Collateral” means Cash, Listed Money Market Funds, Corporate Debt Securities  and U.S. Government Debt Securities, which (a) have the required rating as set forth on Schedule  1.01, (b) are capable of being marked to market on a daily basis and (c) are held in a Collateral  Account.  “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws,  regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises,  





 






14235438v5 27112.00011       12     licenses, agreements or governmental restrictions relating to pollution and the protection of the  environment or the release of any materials into the environment, including those related to  hazardous substances or wastes, air emissions and discharges to waste or public systems.  “Environmental Liability” means any liability, contingent or otherwise (including any  liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the  Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly  resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,  handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure  to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into  the environment or (e) any contract, agreement or other consensual arrangement pursuant to which  liability is assumed or imposed with respect to any of the foregoing.  “Equity Interests” means, with respect to any Person, all of the shares of capital stock of  (or other ownership or profit interests, other than a net profits based bonus program, in) such  Person, all of the warrants, options or other rights for the purchase or acquisition from such Person  of shares of capital stock of (or other ownership or profit interests in) such Person, all of the  securities convertible into or exchangeable for shares of capital stock of (or other ownership or  profit interests in) such Person or warrants, rights or options for the purchase or acquisition from  such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member or trust interests therein), whether voting or  nonvoting, and whether or not such shares, warrants, options, rights or other interests are  outstanding on any date of determination.  “ERISA” means the Employee Retirement Income Security Act of 1974.  “ERISA Affiliate” means any trade or business (whether or not incorporated) under  common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and  Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 or 430 of  the Code).  “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a  withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063  of ERISA during a plan year in which it was a substantial employer (as defined in  Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal  under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any  ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in  reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment  as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings  by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which  constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a  trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability  under Title IV of ERISA, other than for PBGC premiums due but not delinquent under  Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.  “ESG” has the meaning specified in Section 2.17.  “ESG Amendment” has the meaning specified in Section 2.17.  





 






14235438v5 27112.00011       13     “ESG Pricing Provisions” has the meaning specified in Section 2.17.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor person), as in effect from time to time.  “Eurodollar Rate” means, subject to the implementation of a Benchmark Replacement in  accordance with Section 3.03(c):  (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per  annum equal to the London Interbank Offered Rate as administered by ICE Benchmark  Administration (or any other Person that takes over the administration of such rate) for  Dollars for a period equal in length to such Interest Period (“LIBOR”) as published on the  applicable Bloomberg screen page (or such other commercially available source providing  such quotations as may be designated by the Administrative Agent from time to time) at  approximately 11:00 a.m., London time, two London Banking Days prior to the  commencement of such Interest Period, for Dollar deposits (for delivery on the first day of  such Interest Period) with a term equivalent to such Interest Period;  (b) for any interest calculation with respect to a Base Rate Loan on any date,  the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two  London Banking Days prior to such date for Dollar deposits with a term of one month  commencing that day; and  (c) if the Eurodollar Rate shall be less than 0%, such rate shall be deemed 0%  for purposes of this Agreement.  “Eurodollar Rate Loan” means a Revolving Loan that bears interest at a rate based on the  Eurodollar Rate.  “Event of Default” has the meaning specified in Section 8.01.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to any  Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed  on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,  in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having  its principal office or, in the case of any Lender, its applicable Lending Office located in, the  jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other  Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed  on amounts payable to or for the account of such Lender with respect to an applicable interest in a  Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires  such interest in the Loan or Commitment (other than pursuant to an assignment request by the  Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case  to the extent that, pursuant to Section 3.01, amounts with respect to such Taxes were payable either  to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender  immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure  to comply with Section 3.01(g) and (d) any United States federal withholding Taxes imposed under  FATCA.  





 






14235438v5 27112.00011       14     “Existing Credit Agreement” has the meaning specified in the Preamble.  “Existing Letters of Credit” means those letters of credit set forth on Schedule 2.03 and  continued under this Agreement pursuant to Section 2.03.  “Extended Letter of Credit” has the meaning specified in Section 2.03(a)(ii).  “Facility” means the revolving credit facility established pursuant to Article II hereof.  “Fair Market Value” means (a) with respect to any publicly traded security the closing  price for such security on the largest exchange on which such security is traded (or if not traded  on an exchange, then the average of the closing bid and ask prices quoted over-the-counter) on the  date of the determination (as such prices are reported by the Depository Trust Company or if not  so reported, in any nationally recognized financial journal or newspaper), (b) with respect to Cash,  the amount thereof, and (c) with respect to any Eligible Collateral (other than those set forth in  clauses (a), and (b)), the price for such Eligible Collateral on the date of calculation obtained from  a generally recognized source approved by the Administrative Agent or the most recent bid  quotation from such approved source (or, if no generally recognized source exists as to a particular  security, any other source selected in good faith by the Administrative Agent or assigned to such  security by the Administrative Agent in accordance with its standard valuation procedures in effect  at the applicable time).  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with), any current or future regulations or official interpretations thereof, any  agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory  legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or  convention among Governmental Authorities entered into in connection with the implementation  of the foregoing.  “FCA” has the meaning specified in Section 3.03(c).  “FDIC” means the Federal Deposit Insurance Corporation.  “Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal  Reserve Bank of New York based on such day’s federal funds transactions by depository  institutions (as determined in such manner as the Federal Reserve Bank of New York shall set  forth on its public website from time to time) and published on the next succeeding Business Day  by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the  Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero  for purposes of this Agreement.  “Fee Letters” means, collectively, (a) the Bank of America Fee Letter, (b) the Wells Fargo  Fee Letter, (c) the U.S. Bank Fee Letter and (d) the letter agreement, dated September 3, 2021,  among the Borrower, Bank of America, BofA Securities, Inc., U.S. Bank National Association,  Wells Fargo Bank, National Association and Wells Fargo Securities, LLC.  “FHLB” means any federal home loan bank.  





 






14235438v5 27112.00011       15     “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S.  Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under  the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  For  purposes of this definition, the United States, each State thereof and the District of Columbia shall  be deemed to constitute a single jurisdiction.  “FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronted Letter of Credit” means (a) a Letter of Credit issued by a Fronting Bank in which  the Lenders purchase a risk participation pursuant to Section 2.03 and (b) any Existing Letter of  Credit designated as a Fronted Letter of Credit on Schedule 2.03.  “Fronting Bank” means (a) in the case of Fronted Letters of Credit, any Lender which has  agreed at the Borrower’s request (and with notice to the Administrative Agent) to issue one or  more Fronted Letters of Credit (or Fronted Letters of Credit up to a maximum stated amount) or  any successor fronting bank and (b) in the case of Several Letters of Credit, any Lender which has  agreed (with notice to the Administrative Agent) to act as fronting bank on behalf of any  Participating Bank.  “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to  each Fronting Bank, (i) such Defaulting Lender’s Applicable Percentage of the outstanding L/C  Obligations with respect to Fronted Letters of Credit of such Fronting Bank other than L/C  Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders or Cash Collateralized in accordance with the terms hereof and (ii) if such Defaulting  Lender is a Participating Bank, such Defaulting Lender’s Applicable Percentage of the outstanding  L/C Obligations with respect to Several Letters of Credit as to which such Fronting Bank has  fronted for such Defaulting Lender as a Participating Bank and (b) with respect to the Swing Line  Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing  Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders, repaid by the Borrower or for which Cash Collateralization or other credit support  acceptable to the Swing Line Lender shall have been provided in accordance with the terms hereof.  “Fund” means any Person (other than a natural person) that is (or will be) engaged in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions of  credit in the ordinary course of its business.  “GAAP” means generally accepted accounting principles in the United States set forth in  the opinions and pronouncements of the Accounting Principles Board and the American Institute  of Certified Public Accountants and statements and pronouncements of the Financial Accounting  Standards Board or such other principles as may be approved by a significant segment of the  accounting profession in the United States, that are applicable to the circumstances as of the date  of determination, consistently applied.  “Governmental Authority” means the government of the United States or any other nation,  or of any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  





 






14235438v5 27112.00011       16     government (including any supra-national bodies such as the European Union or the European  Central Bank).  “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such  Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other  obligation payable or performable by another Person (the “primary obligor”) in any manner,  whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to  purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or  other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring  the obligee in respect of such Indebtedness or other obligation of the payment or performance of  such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other  financial statement condition or liquidity or level of income or cash flow of the primary obligor so  as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into  for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other  obligation of the payment or performance thereof or to protect such obligee against loss in respect  thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any  Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other  obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such  Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an  amount equal to the stated or determinable amount of the related primary obligation, or portion  thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum  reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good  faith.  The term “Guarantee” as a verb has a corresponding meaning.  “Guaranteed Debt” has the meaning specified in Section 10.19(a).  “Guaranteed Parties” has the meaning specified in Section 10.19(b).  “Guaranty” means the provisions of Section 10.19 and the rights and the obligations of the  Borrower thereunder.  “Hazardous Materials” means all explosive or radioactive substances or wastes and all  hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum  distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,  infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to  any Environmental Law.  “Highest Lawful Rate” means at the particular time in question the maximum rate of  interest which, under Applicable Law, any Lender is then permitted to charge on the Obligations.   If the maximum rate of interest which, under Applicable Law, any Lender is permitted to charge  on the Obligations shall change after the date hereof, the Highest Lawful Rate shall be  automatically increased or decreased, as the case may be, from time to time as of the effective time  of each change in the Highest Lawful Rate without notice to the Borrower.  “IBA” has the meaning specified in Section 3.03(c).  “Impacted Loans” has the meaning specified in Section 3.03(a).  





 






14235438v5 27112.00011       17     “Increase Effective Date” has the meaning specified in Section 2.14(d).  “Indebtedness” means, as to any Person at a particular time, without duplication, all of the  following, whether or not included as indebtedness or liabilities in accordance with GAAP:  (a) all obligations of such Person for borrowed money and all obligations of  such Person evidenced by bonds, debentures, notes, loan agreements or other similar  instruments;  (b) all direct or contingent obligations of such Person arising under letters of  credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety  bonds and similar instruments;  (c) net obligations of such Person under any Swap Contract (computed as set  forth below);  (d) all obligations of such Person to pay the deferred purchase price of property  or services (other than trade accounts payable in the ordinary course of business and, in  each case, not past due for more than sixty (60) days after the date on which such trade  account payable was created);  (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on  property owned or being purchased by such Person (including indebtedness arising under  conditional sales or other title retention agreements), whether or not such indebtedness  shall have been assumed by such Person or is limited in recourse;  (f) capital or finance leases and Synthetic Lease Obligations (computed as set  forth below);  (g) all obligations of such Person to purchase, redeem, retire, defease or  otherwise make any payment in respect of any Equity Interest in such Person or any other  Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary  or involuntary liquidation preference plus accrued and unpaid Dividends; and  (h) all Guarantees of such Person in respect of any of the foregoing.  For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any  partnership or joint venture (other than a joint venture that is itself a corporation or limited liability  company) in which such Person is a general partner or a joint venturer, unless such Indebtedness  is expressly made non-recourse to such Person.  The amount of any net obligation under any Swap  Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.   The amount of any capital or finance lease or Synthetic Lease Obligation as of any date shall be  deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.  “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of any Loan Party under any Loan  Document and (b) to the extent not otherwise described in clause (a), Other Taxes.  “Indemnitees” has the meaning specified in Section 10.04(b).  





 






14235438v5 27112.00011       18     “Information” has the meaning specified in Section 10.07.  “Insurance Subsidiary” means any Subsidiary of the Borrower which is engaged in the life,  health or accident insurance business, including TMK.  “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last  day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that  if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that  fall every three months after the beginning of such Interest Period shall also be Interest Payment  Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of  each March, June, September and December and the Maturity Date.  “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the  date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate  Loan and ending on the date one (1), three (3), or six (6) months thereafter, in each case as selected  by the Borrower in its Loan Notice and subject to availability; provided that:  (a) the Interest Period shall commence on the date of advance of or conversion  to any Eurodollar Rate Loan and, in the case of immediately successive Interest Periods,  each successive Interest Period shall commence on the date on which the immediately  preceding Interest Period expires;  (b) if any Interest Period would otherwise expire on a day that is not a Business  Day, such Interest Period shall expire on the next succeeding Business Day; provided that  if any Interest Period with respect to a Eurodollar Rate Loan would otherwise expire on a  day that is not a Business Day but is a day of the month after which no further Business  Day occurs in such month, such Interest Period shall expire on the immediately preceding  Business Day;  (c) any Interest Period with respect to a Eurodollar Rate Loan that begins on  the last Business Day of a calendar month (or on a day for which there is no numerically  corresponding day in the calendar month at the end of such Interest Period) shall end on  the last Business Day of the relevant calendar month at the end of such Interest Period; and  (d) no Interest Period shall extend beyond the Maturity Date.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by  such Person, whether by means of (a) the purchase or other acquisition of capital stock or other  securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or  assumption of debt of, or purchase or other acquisition of any other debt or equity participation or  interest in, another Person, including any partnership or joint venture interest in such other Person  and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person,  or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of  another Person that constitute a business unit.  “IRS” means the United States Internal Revenue Service.  





 






14235438v5 27112.00011       19     “ISP” means, with respect to any Letter of Credit, the International Standby Practices (ISP  98), Publication 590.  “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit  Application, and any other document, agreement or instrument entered into by the Applicable  Issuing Party and the applicable Loan Party (or any Subsidiary) or in favor of the Applicable  Issuing Party and relating to any such Letter of Credit.  “Joint Arrangers” means BofA Securities, Inc., U.S. Bank National Association and Wells  Fargo Securities, LLC in their capacity as joint lead arrangers and joint book runners.  “Junior Subordinated Debentures” means the 5.875% Junior Subordinated Debentures due  2052 of the Borrower in the principal amount of $125,000,000.  “Key Performance Indicators” has the meaning specified in Section 2.17.  “Laws” means, collectively, all international, foreign, Federal, state and local statutes,  treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents  or authorities, including the interpretation or administration thereof by any Governmental  Authority charged with the enforcement, interpretation or administration thereof, and all applicable  administrative orders, directed duties, requests, licenses, authorizations and permits of, and  agreements with, any Governmental Authority, in each case whether or not having the force of  law.  “L/C Administrator” means Bank of America, acting as letter of credit administrator for  the Lenders, together with any replacement or successor L/C Administrator.  “L/C Advance” means, with respect to each Lender, such Lender’s funding of its  participation in any L/C Borrowing in accordance with its Applicable Percentage under the  Facility.  “L/C Advance Date” has the meaning specified in Section 2.03(c)(ii).  “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter  of Credit which has not been reimbursed on the date when made or refinanced as a Revolving  Borrowing.  “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or  extension of the expiry date thereof, or the increase of the amount thereof.  “L/C Exposure” means, at any time for each Lender, such Lender’s Applicable Percentage  of the L/C Obligations at such time.  “L/C Issuer” means (a) with respect to any Fronted Letter of Credit, the Fronting Bank  which has issued such Letter of Credit and (b) with respect to a Several Letter of Credit, each  Lender other than a Participating Bank.  “L/C Obligations” means, as at any date of determination, the aggregate amount available  to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed  





 






14235438v5 27112.00011       20     Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be  drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in  accordance with Section 1.06.  For all purposes of this Agreement, if on any date of determination  a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason  of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”  in the amount so remaining available to be drawn.  For purposes of determining the L/C  Obligations held by any Lender, a Lender shall be deemed to hold an amount equal to the sum of  (a) the aggregate amount of each Lender’s direct obligation in all outstanding Several Letters of  Credit (or, if a Participating Bank, its risk participation in Several Letters of Credit), (b) its risk  participation in all outstanding Fronted Letters of Credit, and (c) its L/C Borrowings.  “Lender” has the meaning specified in the introductory paragraph hereto and, as the context  requires, includes the Swing Line Lender.  “Lending Office” means, as to any Lender, the office or offices of such Lender described  as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender  may from time to time notify the Borrower and the Administrative Agent, which office may  include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such  Affiliate. Unless the context otherwise requires each reference to a Lender shall include its  applicable Lending Office.  “Letter of Credit” means any letter of credit issued hereunder.  Each Letter of Credit shall  be a standby letter of credit.  “Letter of Credit Application” means an application and agreement for the issuance or  amendment of a Letter of Credit in the form from time to time in use by the Applicable Issuing  Party.  “Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the  Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business  Day).  “Letter of Credit Fee” has the meaning specified in Section 2.03(i).  “Letter of Credit Sublimit” means an amount equal to $250,000,000.  The Letter of Credit  Sublimit is part of, and not in addition to, the Aggregate Commitments.  “LIBOR” has the meaning specified in the definition of Eurodollar Rate.  “License” means any license, certificate of authority, permit or other authorization which  is required to be obtained from a Governmental Authority in connection with the operation,  ownership or transaction of insurance business.  “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,  encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or  preferential arrangement in the nature of a security interest of any kind or nature whatsoever  (including any conditional sale or other title retention agreement, any easement, right of way or  other encumbrance on title to real property, and any financing lease having substantially the same  





 






14235438v5 27112.00011       21     economic effect as any of the foregoing, but excluding (a) liens for taxes not yet due or which are  being contested in good faith and by appropriate proceedings diligently conducted, if adequate  reserves with respect thereto are maintained on the books of the applicable Person in accordance  with GAAP, (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like  liens arising the ordinary course of business which are not overdue for a period of more than thirty  (30) days or which are being contested in good faith and by appropriate proceedings diligently  conducted, if adequate reserves with respect thereto are maintained on the books of the applicable  Person, (c) pledges or deposits in the ordinary course of business in connection with workers’  compensation, unemployment insurance and other social security legislation, other than any lien  imposed by ERISA, (d) deposits to secure the performance of bids, trade contracts and leases  (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to  judgments or litigation), performance bonds and other obligations of a like nature incurred in the  ordinary course of business, and (e) easements, rights-of-way, restrictions and other similar  encumbrances affecting real property which, in the aggregate, are not substantial in amount, and  which do not in any case materially detract from the value of the property subject thereto or  materially interfere with the ordinary conduct of the business of the applicable Person).  “Listed Money Market Fund” means a money market fund that complies with the criteria  set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act  of 1940 and is rated AAA by S&P and Aaa by Moody’s.  “Loan” means a Revolving Loan and/or a Swing Line Loan, as applicable.  “Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee  Letters, each Compliance Certificate, each Loan Notice, each Swing Line Loan Notice, any  agreement creating or perfecting rights in Collateral pursuant to the provisions of this Agreement,  each Guaranty, each Control Agreement, each Security Agreement and each amendment to any of  the foregoing.  “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Revolving Loans  from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to  Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit C.  “Loan Parties” means, collectively, the Borrower and TMK.  “London Banking Day” means any day on which dealings in Dollar deposits are conducted  by and between banks in the London interbank Eurodollar market.  “Material Adverse Effect” means (a) a material adverse change in, or a material adverse  effect upon, the operations, business, properties, liabilities (actual or contingent), condition  (financial or otherwise) or prospects of the Loan Parties, or any of them, or the Borrower and its  Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform  its obligations under any Loan Document to which it is a party; or (c) a material adverse effect  upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan  Document to which it is a party.  “Maturity Date” means (a) September 30, 2026, or if such date is not a Business Day, the  next preceding Business Day, or (b) such earlier date as (i) the Commitments are terminated  





 






14235438v5 27112.00011       22     pursuant to this Agreement (whether by acceleration, election of the Borrower or otherwise) or (ii)  the Obligations in respect of the Facility are accelerated pursuant to Section 8.02 of this  Agreement.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Multiemployer Plan” means any employee benefit plan of the type described in  Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated  to make contributions, or during the preceding five plan years, has made or been obligated to make  contributions.  “NAIC” means the National Association of Insurance Commissioners or any successor  thereto, or in lieu thereof, any other association, agency or other organization performing advisory,  coordination or other like functions among insurance departments, insurance commissions and  similar Governmental Authorities of the various states of the United States of America toward the  promotion of uniformity in the practices of such Governmental Authorities.  “NAIC Approved Bank” means any entity that is a financial institution listed on the most  current “List of Qualified U.S. Financial Institutions” approved by the NAIC and acting through  the branch so listed.  “Net Proceeds” means, with respect to the sale or issuance by the Borrower or any of its  Subsidiaries to any Person (other than to the Borrower or a Wholly-Owned Subsidiary) of any  Equity Interests, including any conversion of debt securities into Equity Interests, the excess of  (a) the gross proceeds from such sale, issuance, or conversion over (b) all reasonable and  customary underwriting commissions and legal, investment banking, brokerage and accounting  and other professional fees and disbursements actually incurred in connection with each such sale,  issuance or conversion.  “Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).  “Notes” means the Revolving Notes and the Swing Line Note.  “Obligations” means all advances to, and debts, liabilities, obligations, covenants and  duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan  or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute  or contingent, due or to become due, now existing or hereafter arising and including interest and  fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of  any proceeding under any Debtor Relief Laws naming such Person as the debtor in such  proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  “OFAC” means the Office of Foreign Assets Control of the United States Department of  the Treasury.  “Organization Documents” means, (a) with respect to any corporation, the certificate or  articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with  respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the  certificate or articles of formation or organization and operating agreement; and (c) with respect  





 






14235438v5 27112.00011       23     to any partnership, joint venture, trust or other form of business entity, the partnership, joint  venture or other applicable agreement of formation or organization and any agreement, instrument,  filing or notice with respect thereto filed in connection with its formation or organization with the  applicable Governmental Authority in the jurisdiction of its formation or organization and, if  applicable, any certificate or articles of formation or organization of such entity.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result  of a present or former connection between such Recipient and the jurisdiction imposing such Tax  (other than connections arising from such Recipient having executed, delivered, become a party  to, performed its obligations under, received payments under, received or perfected a security  interest under, 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 Rate Early Opt-in” means the Administrative Agent and the Borrower have elected  to replace LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (i) an  Early Opt-in Election and (ii) Section 3.03(c)(ii) and paragraph (2) of the definition of “Benchmark  Replacement”.  “Other Taxes” means all present or future stamp, court, documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 10.13).  “Outstanding Amount” means (i) with respect to Revolving Loans and Swing Line Loans  on any date, the aggregate outstanding principal amount thereof after giving effect to any  borrowings and prepayments or repayments of Revolving Loans and Swing Line Loans, as the  case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the  aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C  Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C  Obligations as of such date, including as a result of any reimbursements by the Borrower of  Unreimbursed Amounts.  “Participant” has the meaning specified in Section 10.06(d).  “Participant Register” has the meaning specified in Section 10.06(d).  “Participating Bank” means, from time to time, with respect to any Several Letter of Credit,  a Lender that is unable to issue such Letter of Credit because (a) it is unable to do so due to  regulatory restrictions or other legal impediments based on its relationship to the beneficiary or  (b) it is not, or has lost its status as, an NAIC Approved Bank (if such Letter of Credit must be  issued by NAIC Approved Banks).  “Participating Notice” means a written notice delivered by a Lender to the Borrower, the  Administrative Agent and the L/C Administrator to the effect that such Lender is a Participating  Bank with respect to any potential (or previously issued but to be amended) Several Letter of  Credit and stating the basis for such status.  If the basis for such status is that such Lender is not,  





 






14235438v5 27112.00011       24     or has lost its status as, an NAIC Approved Bank, then (a) such notice shall be deemed applicable  to each subsequently issued Several Letter of Credit which must be issued by NAIC Approved  Banks until such notice has been withdrawn and (b) such Lender shall promptly withdraw such  notice (by subsequent written notice to the parties named above) at such time, if ever, as such  Lender has attained or regained status as an NAIC Approved Bank.  “PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into  law October 26, 2001)).  “PBGC” means the Pension Benefit Guaranty Corporation.  “Pension Act” means the Pension Protection Act of 2006.  “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum  required contributions (including any installment payment thereof) to Pension Plans and set forth  in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of  the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,  Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.  “Pension Plan” means any “employee pension benefit plan” (as such term is defined in  Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and  is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or  any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple  employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time  during the immediately preceding five plan years.  “Permitted Acquisition” means the Acquisition of any Person which has been approved  and recommended by the board of directors (or the functional equivalent thereof) of the Person  being acquired.  “Person” means any natural person, corporation, limited liability company, trust, joint  venture, association, company, partnership, Governmental Authority or other entity.  “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of  ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412  of the Code or Title IV of ERISA, any ERISA Affiliate.  “Platform” has the meaning specified in Section 6.02.  “Prime Rate” means, at any time, the rate of interest per annum publicly announced from  time to time by Bank of America as its prime rate.  Each change in the Prime Rate shall be effective  as of the opening of business on the day such change in such prime rate occurs.  The parties hereto  acknowledge that the rate announced publicly by Bank of America as its prime rate is an index or  base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.  “Property” means any interest of the Borrower or any Subsidiary in any kind or property  or asset, whether real, personal or mixed, or tangible or intangible.  





 






14235438v5 27112.00011       25     “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.  “Public Lender” has the meaning specified in Section 6.02.  “Quarterly Statement” means the quarterly statutory financial statement of any Insurance  Subsidiary required to be filed with the insurance commissioner (or similar authority) of its  jurisdiction of incorporation, which statement shall be in the form required by such Insurance  Subsidiary’s jurisdiction of incorporation or, if no specific form is so required, in the form of  financial statements recommended by the NAIC to be used for filing quarterly statutory financial  statements and shall contain the type of information recommended by the NAIC to be disclosed  therein, together with all exhibits or schedules filed therewith.  “Recipient” means (a) the Administrative Agent, (b) any Lender (including any Swing Line  Lender), (c) any L/C Issuer, (d) any Fronting Bank and (e) the L/C Administrator, as applicable.  “Register” has the meaning specified in Section 10.06(c).  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the  partners, directors, officers, employees, agents and advisors of such Person and of such Person’s  Affiliates.  “Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York,  or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New  York, or any successor thereto.  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other  than events for which the 30 day notice period has been waived.  “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or  continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of  Credit Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.  “Required Lenders” means, as of any date of determination, Lenders holding more than  50% of the Total Credit Exposures of all Lenders; provided that the Total Credit Exposure of any  Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.  “Rescindable Amount” has the meaning specified in Section 2.12(c).  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Responsible Officer” means the chief executive officers, president, chief financial officer,  chief investment officer or treasurer of a Loan Party.  Any document delivered hereunder that is  signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been  authorized by all necessary corporate, partnership and/or other action on the part of such Loan  Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such  Loan Party.  





 






14235438v5 27112.00011       26     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans  of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made  by each of the Lenders pursuant to Section 2.01.  “Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal  amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C  Obligations and Swing Line Loans at such time.  “Revolving Loan” has the meaning specified in Section 2.01.  “Revolving Note” means a promissory note made by the Borrower in favor of a Lender  evidencing Revolving Loans made by such Lender, substantially in the form of Exhibit D.  “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc.,  and any successor thereto.  “Sanctions” means any sanction administered or enforced by the United States Government  (including without limitation, OFAC), the United Nations Security Council, the European Union,  Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.  “SAP” means, with respect to any Insurance Subsidiary, the statutory accounting practices  prescribed or permitted by the insurance commissioner (or other similar authority) as of the date  hereof in the jurisdiction of incorporation of such Insurance Subsidiary for the preparation of  annual statements and other financial reports by insurance companies of the same type as such  Insurance Subsidiary.  “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.  “Secured L/C Obligations” means L/C Obligations with respect to Secured Letters of  Credit.  “Secured Letter of Credit” means a Letter of Credit issued at the request of a Loan Party  which has been designated as a “Secured Letter of Credit” in the applicable Letter of Credit  Application and which has not been redesignated as an Unsecured Letter of Credit pursuant to  Section 2.03(l).  “Security Agreement” means, individually and collectively, each security agreement or  other collateral document, each in form and substance satisfactory to the Administrative Agent,  entered into between the Administrative Agent and a Loan Party pursuant hereto.  “Several Letter of Credit” means (a) a Letter of Credit issued severally by or on behalf of  the Lenders pursuant to which the Lenders are severally liable to the beneficiary, which shall be  substantially in the form of Exhibit E or in such other form consistent with the proviso to  Section 2.03(a)(iii)(D) as may be agreed by the applicable Loan Party and the L/C Administrator  and (b) any Existing Letter of Credit designated as a Several Letter of Credit on Schedule 2.03.  “Significant Insurance Subsidiary” means any Significant Subsidiary which is an Insurance  Subsidiary, and shall in any event include Globe Life And Accident Insurance Company, a  





 






14235438v5 27112.00011       27     Nebraska insurance company, Liberty National Life Insurance Company, a Nebraska insurance  company, United American Insurance Company, a Nebraska insurance company, and American  Income Life Insurance Company, an Indiana insurance company.  “Significant Subsidiary” of a Person means a “significant subsidiary” as defined in Rule 1- 02(v) of Regulation S-X of the Securities and Exchange Commission (17 CFR Part 210).  Unless  otherwise expressly provided, all references herein to a “Significant Subsidiary” shall mean a  Significant Subsidiary of the Borrower.  “SOFR Early Opt-in” means the Administrative Agent and the Borrower have elected to  replace LIBOR pursuant to (i) an Early Opt-in Election and (ii) Section 3.03(c)(i) and paragraph  (1) of the definition of “Benchmark Replacement”.  “Solvent” means, with respect to any Person, as of any date of determination, that the fair  value of the assets of such Person (at fair valuation) is, on the date of determination, greater than  the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as  of such date, that the present fair saleable value of the assets of such Person will, as of such date,  be greater than the amount that will be required to pay the probable liability of such Person on its  debts as such debts become absolute and matured, and that, as of such date, such Person will be  able to pay all liabilities of such Person as such liabilities mature and such Person does not have  unreasonably small capital with which to carry on its business.  In computing the amount of  contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount  which, in light of all the facts and circumstances existing at such time, represents the amount that  can reasonably be expected to become an actual or matured liability discounted to present value at  rates believed to be reasonable by such Person acting in good faith.  “Subordinated Debt” means, collectively, (i) the Junior Subordinated Debentures and  (ii) any other unsecured indebtedness of the Borrower (and not a Subsidiary) which is subordinated  by its terms to the prior payment in full of the Obligations evidenced by this Agreement in a manner  no less favorable to the Lenders than the Junior Subordinated Debentures and which contain  covenants that are not less favorable to the Borrower than those contained in the Junior  Subordinated Debentures.  “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability  company or other business entity of which more than 50% of the Equity Interests having ordinary  voting power for the election of directors or other governing body (other than Equity Interests  having such power only by reason of the happening of a contingency) are at the time beneficially  owned, or the management of which is otherwise controlled, directly, or indirectly through one or  more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to  a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.  “Sustainability Coordinator” means BofA Securities, Inc. in its capacity as Sustainability  Coordinator hereunder or any successor thereto.  “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit  derivative transactions, forward rate transactions, commodity swaps, commodity options, forward  commodity contracts, equity or equity index swaps or options, bond or bond price or bond index  swaps or options or forward bond or forward bond price or forward bond index transactions,  





 






14235438v5 27112.00011       28     interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,  collar transactions, currency swap transactions, cross-currency rate swap transactions, currency  options, spot contracts, or any other similar transactions or any combination of any of the foregoing  (including any options to enter into any of the foregoing), whether or not any such transaction is  governed by or subject to any master agreement, and (b) any and all transactions of any kind, and  the related confirmations, which are subject to the terms and conditions of, or governed by, any  form of master agreement published by the International Swaps and Derivatives Association, Inc.,  any International Foreign Exchange Master Agreement, or any other master agreement (any such  master agreement, together with any related schedules, a “Master Agreement”), including any such  obligations or liabilities under any Master Agreement.  “Swap Obligations” means any and all obligations owed by any Loan Party to any Lender  or any Affiliate of any Lender in respect of a Swap Contract.  “Swap Termination Value” means, in respect of any one or more Swap Contracts, after  taking into account the effect of any legally enforceable netting agreement relating to such Swap  Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and  termination value(s) determined in accordance therewith, such termination value(s), and (b) for  any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market  value(s) for such Swap Contracts, as determined based upon one or more mid-market or other  readily available quotations provided by any recognized dealer in such Swap Contracts (which  may include a Lender or any Affiliate of a Lender).  “Swing Line” means the revolving credit facility made available by the Swing Line Lender  pursuant to Section 2.04.  “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to  Section 2.04.  “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line  Loans, or any successor swing line lender hereunder.  “Swing Line Loan” has the meaning specified in Section 2.04(a).  “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to  Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit F.  “Swing Line Note” means a promissory note made by the Borrower in favor of the Swing  Line Lender evidencing Swing Line Loans, substantially in the form of Exhibit G.  “Swing Line Sublimit” means an amount equal to the lesser of (a) $35,000,000 and (b) the  Aggregate Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate  Commitments.  “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so- called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or  possession of property creating obligations that do not appear on the balance sheet of such Person  





 






14235438v5 27112.00011       29     but which, upon the insolvency or bankruptcy of such Person, would be characterized as the  indebtedness of such Person (without regard to accounting treatment).  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, fines, additions to tax or penalties applicable thereto.  “Term Loan Agreement” means that certain 364-Day Term Loan Agreement, dated  April 9, 2020, among the Borrower, certain lenders from time to time party thereto and Bank of  America, as administrative agent, and any refinancings, refundings, renewals or extensions  thereof.  “Term SOFR” means, for the applicable corresponding tenor (or if any Available Tenor of  a Benchmark does not correspond to an Available Tenor for the applicable Benchmark  Replacement, the closest corresponding Available Tenor and if such Available Tenor corresponds  equally to two Available Tenors of the applicable Benchmark Replacement, the corresponding  tenor of the shorter duration shall be applied), the forward-looking term rate based on SOFR that  has been selected or recommended by the Relevant Governmental Body.  “TMK” has the meaning specified in the introductory paragraph hereto.  “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments  and Revolving Credit Exposure of such Lender at such time.   “Total Outstandings” means the aggregate Outstanding Amount of all Revolving Loans,  all Swing Line Loans and all L/C Obligations.  “Type” means, with respect to a Revolving Loan, its character as a Base Rate Loan or a  Eurodollar Rate Loan.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under  the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended  from time to time) promulgated by the United Kingdom Financial Conduct Authority, which  includes certain credit institutions and investment firms, and certain affiliates of such credit  institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “United States” and “U.S.” mean the United States of America.  “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).  “Unsecured Letter of Credit” means a Letter of Credit which is not a Secured Letter of  Credit.  “U.S. Bank Fee Letter” means that certain letter agreement, dated as of September 3, 2021,  among the Borrower and U.S. Bank National Association.  





 






14235438v5 27112.00011       30     “U.S. Government Debt Securities” means direct obligations of, or obligations the  principal of and interest on which are unconditionally guaranteed by, the United States (or by any  agency thereof to the extent such obligations are backed by the full faith and credit of the United  States).  “U.S. Person” means any Person that is a “United States person” as defined in  Section 7701(a)(30) of the Code.  “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(g).  “Wells Fargo Fee Letter” means that certain letter agreement, dated as of September 3,  2021, among the Borrower and Wells Fargo Securities, LLC.  “Wholly-Owned Subsidiary” when used to determine the relationship of a Subsidiary to a  Person, means a Subsidiary all of the issued and outstanding Equity Interests (other than directors’  qualifying shares) of which shall at the time be owned by such Person or one or more of such  Person’s Wholly-Owned Subsidiaries or by such Person and one or more of such Person’s Wholly- Owned Subsidiaries.  “Withholding Agent” means any Loan Party and the Administrative Agent.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down  and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect  to the United Kingdom,  any powers of the applicable Resolution Authority  under the Bail-In  Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial  Institution  or any contract or instrument under which that liability arises, to convert all or part of  that liability into shares, securities or obligations of that person or any other person, to provide that  any such contract or instrument is to have effect as if a right had been exercised under it or to  suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  1.02 Other Interpretive Provisions.  With reference to this Agreement and each other  Loan Document, unless otherwise specified herein or in such other Loan Document:  (a) The definitions of terms herein shall apply equally to the singular and plural  forms of the terms defined.  Whenever the context may require, any pronoun shall include  the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”  and “including” shall be deemed to be followed by the phrase “without limitation.”  The  word “will” shall be construed to have the same meaning and effect as the word “shall.”   Unless the context requires otherwise, (i) any definition of or reference to any agreement,  instrument or other document (including any Organization Document) shall be construed  as referring to such agreement, instrument or other document as from time to time  amended, supplemented or otherwise modified (subject to any restrictions on such  amendments, supplements or modifications set forth herein or in any other Loan  Document), (ii) any reference herein to any Person shall be construed to include such  Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and  





 






14235438v5 27112.00011       31     “hereunder” and words of similar import when used in any Loan Document, shall be  construed to refer to such Loan Document in its entirety and not to any particular provision  thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and  Schedules shall be construed to refer to Articles and Sections of, and Exhibits and  Schedules to, the Loan Document in which such references appear, (v) any reference to  any law shall include all statutory and regulatory provisions consolidating, amending  replacing or interpreting such law and any reference to any law, rule or regulation shall,  unless otherwise specified, refer to such law, rule or regulation as amended, modified or  supplemented from time to time, and (vi) the words “asset” and “property” shall be  construed to have the same meaning and effect and to refer to any and all tangible and  intangible assets and properties, including cash, securities, accounts and contract rights.  (b) In the computation of periods of time from a specified date to a later  specified date, the word “from” means “from and including;” the words “to” and “until”  each mean “to but excluding;” and the word “through” means “to and including.”  (c) Section headings herein and in the other Loan Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or  any other Loan Document.  (d) For purposes of Section 8.01(b), a breach of a financial covenant contained  in Section 7.07 shall be deemed to have occurred as of any date of determination thereof  by the Administrative Agent or as of the last day of any specified measuring period,  regardless of when the financial statements reflecting such breach are delivered to the  Administrative Agent and the Lenders.  1.03 Accounting Terms.  (a) Generally.  All accounting terms not specifically or completely defined  herein shall be construed in conformity with, and all financial data (including financial  ratios and other financial calculations) required to be submitted pursuant to this Agreement  shall be prepared in conformity with, GAAP or SAP, as the case may be, applied on a  consistent basis, as in effect from time to time, applied in a manner consistent with that  used in preparing the Audited Financial Statements, except as otherwise specifically  prescribed herein.  (b) Changes in GAAP or SAP.  If at any time any change in GAAP or SAP, as  the case may be, would affect the computation of any financial ratio or requirement set  forth in any Loan Document, and either the Borrower or the Required Lenders shall so  request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good  faith to amend such ratio or requirement to preserve the original intent thereof in light of  such change in GAAP or SAP, as the case may be, (subject to the approval of the Required  Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to  be computed in accordance with GAAP or SAP, as the case may be, prior to such change  therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders  financial statements and other documents required under this Agreement or as reasonably  requested hereunder setting forth a reconciliation between calculations of such ratio or  





 






14235438v5 27112.00011       32     requirement made before and after giving effect to such change in GAAP or SAP, as the  case may be.  Notwithstanding the foregoing, for purposes of financial covenant calculations under Section 7.07,  Indebtedness (including Subordinated Debt accorded equity treatment) shall be deemed to be  carried at 100% of the outstanding principal amount thereof and the effects of The Financial  Accounting Standards Board Accounting Standards Codification 825 shall be disregarded.  1.04 Rounding.  Any financial ratios required to be maintained by the Borrower  pursuant to this Agreement shall be calculated by dividing the appropriate component by the other  component, carrying the result to one place more than the number of places by which such ratio is  expressed herein and rounding the result up or down to the nearest number (with a rounding-up if  there is no nearest number).  1.05 Times of Day.  Unless otherwise specified, all references herein to times of day  shall be references to Central time (daylight or standard, as applicable).  1.06 Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a  Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in  effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms  or the terms of any Issuer Document related thereto, provides for one or more automatic increases  in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the  maximum stated amount of such Letter of Credit after giving effect to all such increases, whether  or not such maximum stated amount is in effect at such time.  1.07 Divisions.  Any reference herein to a merger, transfer, consolidation,  amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be  deemed to apply to a division of or by a limited liability company, or an allocation of assets to a  series of a limited liability company (or the unwinding of such a division or allocation), as if it  were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition  or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited  liability company shall constitute a separate Person hereunder (and each division of any limited  liability company that is a Subsidiary, joint venture or any other like term shall also constitute such  a Person or entity).  1.08 Rates.  The Administrative Agent does not warrant, nor accept responsibility, nor  shall the Administrative Agent have any liability with respect to the administration, submission or  any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to any  rate that is an alternative or replacement for or successor to any of such rate (including, without  limitation, any Benchmark Replacement) or the effect of any of the foregoing, or of any  Benchmark Replacement Conforming Changes.  ARTICLE II    THE COMMITMENTS AND CREDIT EXTENSIONS  2.01 Loans.  Subject to the terms and conditions set forth herein, each Lender severally  agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower from time to time, on  





 






14235438v5 27112.00011       33     any Business Day during the Availability Period, in an aggregate amount not to exceed at any time  outstanding the amount of such Lender’s Commitment; provided, however, that after giving effect  to any Revolving Borrowing, (i) the Total Outstandings shall not exceed the Aggregate  Commitments,  (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender  (other than the Swing Line Lender), plus such Lender’s Applicable Percentage of the Outstanding  Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding  Amount of all Swing Line Loans shall not exceed such Lender’s Commitment and (iii) the  aggregate Outstanding Amount of the Revolving Loans of the Swing Line Lender, plus the Swing  Line Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus the  Outstanding Amount of all Swing Line Loans shall not exceed the Swing Line Lender’s  Commitment.  Within the limits of each Lender’s Commitment, and subject to the other terms and  conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.05,  and reborrow under this Section 2.01. Revolving Loans may be Base Rate Loans or Eurodollar  Rate Loans, as further provided herein.  2.02 Borrowings, Conversions and Continuations of Loans.  (a) Each Revolving Borrowing, each conversion of Loans from one Type to the  other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s  irrevocable notice to the Administrative Agent, which may be given by telephone.  Each  such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three  (3) Business Days prior to the requested date of any Revolving Borrowing of, conversion  to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans  to Base Rate Loans, and (ii) on the Business Day of any Revolving Borrowing of Base  Rate Loans.  Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must  be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,  appropriately completed and signed by a Responsible Officer of the Borrower.  Each  Revolving Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be  in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof.   Except as provided in Sections 2.03(c) and 2.04(c), each Revolving Borrowing of or  conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole  multiple of $100,000 in excess thereof.  Each Loan Notice (whether telephonic or written)  shall specify (i) whether the Borrower is requesting a Revolving Borrowing, a conversion  of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the  requested date of the Revolving Borrowing, conversion or continuation, as the case may  be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,  converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans  are to be converted, and (v) if applicable, the duration of the Interest Period with respect  thereto.  If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower  fails to give a timely notice requesting a conversion or continuation, then the applicable  Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion  to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect  with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Revolving  Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan  Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest  Period of one month.  





 






14235438v5 27112.00011       34     (b) Following receipt of a Loan Notice, the Administrative Agent shall  promptly notify each Lender of the amount of its Applicable Percentage of the applicable  Loans, and if no timely notice of a conversion or continuation is provided by the Borrower,  the Administrative Agent shall notify each Lender of the details of any automatic  conversion to Base Rate Loans described in the preceding subsection.  In the case of a  Revolving Borrowing, each Lender shall make the amount of its Revolving Loan available  to the Administrative Agent in immediately available funds at the Administrative Agent’s  Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice.   Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such  Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall  make all funds so received available to the Borrower in like funds as received by the  Administrative Agent either by (i) crediting the account of the Borrower on the books of  Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each  case in accordance with instructions provided to (and reasonably acceptable to) the  Administrative Agent by the Borrower; provided, however, that if, on the date the Loan  Notice with respect to such Revolving Borrowing is given by the Borrower, there are L/C  Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the  payment in full of any such L/C Borrowings, and second, shall be made available to the  Borrower as provided above.  (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be  continued or converted only on the last day of an Interest Period for such Eurodollar Rate  Loan.  During the existence of a Default, no Loans may be requested as, converted to or  continued as Eurodollar Rate Loans without the consent of the Required Lenders.  (d) The Administrative Agent shall promptly notify the Borrower and the  Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans  upon determination of such interest rate.  At any time that Base Rate Loans are outstanding,  the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank  of America’s prime rate used in determining the Base Rate promptly following the public  announcement of such change.  (e) After giving effect to all Revolving Borrowings, all conversions of Loans  from one Type to the other, and all continuations of Loans as the same Type, there shall  not be more than six Interest Periods in effect at any time.  2.03 Letters of Credit.  (a) The Letter of Credit Commitment.  (i) Subject to the terms and conditions set forth herein, (A) each  Fronting Bank agrees, in reliance upon the agreements of the Lenders set forth in  this Section 2.03, (1) from time to time on any Business Day during the Availability  Period, to issue Fronted Letters of Credit denominated in Dollars for the account of  any Loan Party, and to amend or extend Fronted Letters of Credit previously issued  by it, in accordance with subsection (b) below but in each case solely to the extent  it has separately and in its sole discretion agreed with the Borrower to do so, and  (2) to honor drawings under such Fronted Letters of Credit; and the Lenders  





 






14235438v5 27112.00011       35     severally agree to participate in Fronted Letters of Credit issued for the account of  any Loan Party and any drawings thereunder; and (B) each Lender severally agrees,  (1) from time to time on any Business Day during the Availability Period, to issue,  extend and renew in such Lender’s Applicable Percentage under the Facility,  Several Letters of Credit denominated in Dollars at the request of and for the  account of any Loan Party, in accordance with subsection (b) below (except such  Letters of Credit as to which it has advised the Administrative Agent and, if  applicable, the L/C Administrator that it is a Participating Bank), and (2) to honor  its Applicable Percentage of drawings under the Several Letters of Credit and each  Fronting Bank who has agreed to front for a Participating Bank under Several  Letters of Credit hereby agrees that it shall be severally (and not jointly) liable for  an amount equal to its Applicable Percentage under the Facility plus such  Participating Bank’s Applicable Percentage under each Several Letter of Credit and  each Participating Bank hereby agrees to purchase a risk participation in the  obligations of the relevant Fronting Bank under any such Several Letter of Credit  in an amount equal to such Participating Bank’s Applicable Percentage under the  Facility; provided that after giving effect to any L/C Credit Extension with respect  to any Letter of Credit, (v) the Total Outstandings shall not exceed the Aggregate  Commitments, (w) the aggregate Outstanding Amount of the Revolving Loans of  any Lender (other than the Swing Line Lender), plus such Lender’s Applicable  Percentage of the Outstanding Amount of all Swing Line Loans, plus such Lender’s  Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not  exceed such Lender’s Commitment, (x) the aggregate Outstanding Amount of the  Revolving Loans of the Swing Line Lender, plus the Swing Line Lender’s  Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus the  Outstanding Amount of all Swing Line Loans shall not exceed the Swing Line  Lender’s Commitment, (y) the Secured L/C Obligations shall not exceed the  Borrowing Base, and (z) the Outstanding Amount of the L/C Obligations shall not  exceed the Letter of Credit Sublimit.  Each request by any Loan Party for the  issuance or amendment of a Letter of Credit shall be deemed to be a representation  by such Loan Party that the L/C Credit Extension so requested complies with the  conditions set forth in the proviso to the preceding sentence.  Within the foregoing  limits, and subject to the terms and conditions hereof, the Loan Parties’ ability to  obtain Letters of Credit shall be fully revolving, and accordingly the Loan Parties  may, during the foregoing period, obtain Letters of Credit to replace Letters of  Credit that have expired or that have been drawn upon and reimbursed.  (ii) The Applicable Issuing Party shall not issue any Letter of Credit, if:  (A) subject to Section 2.03(b)(iii), the expiry date of such  requested Letter of Credit would occur more than twelve months after the  date of issuance or last extension, unless the Required Lenders have  approved such expiry date;  (B) the expiry date of such requested Letter of Credit would  occur after the Letter of Credit Expiration Date, provided that any Letter of  Credit may expire after such date (but in any event, no later than the first  





 






14235438v5 27112.00011       36     anniversary of the Maturity Date) (each Letter of Credit with an expiry date  after the Letter of Credit Expiration Date (including as a result of any  automatic renewal in accordance with Section 2.03(b)(iii)), an “Extended  Letter of Credit”) with the consent of the Applicable Issuing Party and  subject to the requirements of Section 2.03(g); or  (C) such Letter of Credit is to be denominated in a currency other  than Dollars.  (iii) Neither any L/C Issuer nor the L/C Administrator shall be under any  obligation to issue any Letter of Credit if:  (A) any order, judgment or decree of any Governmental  Authority or arbitrator shall by its terms purport to enjoin or restrain such  Person from issuing such Letter of Credit, or any Law applicable to such  Person or any request or directive (whether or not having the force of law)  from any Governmental Authority with jurisdiction over such Person shall  prohibit, or request that such Person refrain from, the issuance of letters of  credit generally or such Letter of Credit in particular or shall impose upon  such Person with respect to such Letter of Credit any restriction, reserve or  capital requirement (for which such Person is not otherwise compensated  hereunder) not in effect on the Effective Date, or shall impose upon such  Person any unreimbursed loss, cost or expense which was not applicable on  the Effective Date and which such Person in good faith deems material to  it;  (B) the issuance of such Letter of Credit would violate one or  more policies of such Person related to letters of credit generally;  (C) except as otherwise agreed by the Administrative Agent and  the Applicable Issuing Party, such Letter of Credit is in an initial stated  amount less than $100,000;  (D) in the case of a Several Letter of Credit, such Letter of Credit  is not substantially in the form of Exhibit E (provided that the Applicable  Issuing Party may agree to reasonable changes to such form, not adverse to  the interests of the Lenders, necessary to satisfy any then applicable  requirements of the applicable insurance regulators);  (E) only with respect to (1) a Fronted Letter of Credit or (2) a  Several Letter of Credit as to which such Defaulting Lender is a  Participating Bank, any Lender is at the applicable time a Defaulting Lender  and the Fronting Bank has (or after giving effect to the issuance of such  Letter of Credit will have) Fronting Exposure (after giving effect to  Section 2.15(c)), unless the Fronting Bank has entered into arrangements,  including the delivery of Cash Collateral, satisfactory to the Fronting Bank  (in its sole discretion) with such Defaulting Lender or the Borrower to  eliminate the Fronting Bank’s Fronting Exposure (after giving effect to  





 






14235438v5 27112.00011       37     Section 2.15) with respect to such Defaulting Lender arising from either  such Letter of Credit or such Letter of Credit and all other L/C Obligations  (including as Fronting Bank for a Participating Bank) as to which the  Fronting Bank has Fronting Exposure (after giving effect to Section 2.15)  as it may elect in its sole discretion; or  (F) such Letter of Credit contains any provisions for automatic  reinstatement of the stated amount after any drawing thereunder.  (iv) No Applicable Issuing Party shall amend any Letter of Credit if such  Applicable Issuing Party would not be permitted at such time to issue such Letter  of Credit in its amended form under the terms hereof.  (v) The Applicable Issuing Party shall be under no obligation to amend  any Letter of Credit if (A) the Applicable Issuing Party would have no obligation  at such time to issue such Letter of Credit in its amended form under the terms  hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed  amendment to such Letter of Credit.  (vi) The L/C Administrator is hereby authorized to execute and deliver  each Several Letter of Credit and each amendment to a Several Letter of Credit on  behalf of each Lender (unless such Lender has delivered a Participating Notice  which is applicable to such Several Letter of Credit and has not been withdrawn).   The L/C Administrator shall use the Applicable Percentage of an L/C Issuer under  each Several Letter of Credit provided that the applicable Fronting Bank for such  Participating Bank shall be severally (and not jointly) liable for an amount equal to  its Applicable Percentage under the Facility plus the Applicable Percentage of each  Participating Bank. The L/C Administrator shall not amend any Several Letter of  Credit to change the “Commitment Shares” of a Lender or add or delete a Lender  liable thereunder unless such amendment is done in connection with an assignment  in accordance with Section 10.06, a change in the Lenders and/or the Applicable  Percentages under the Facility as a result of any increase in the Aggregate  Commitments pursuant to Section 2.14 or any other addition or replacement of a  Lender in accordance with the terms of this Agreement or a change in status of a  Lender as a Participating Bank.  Each Lender hereby irrevocably constitutes and  appoints the L/C Administrator its true and lawful attorney-in-fact for and on behalf  of such Lender with full power of substitution and revocation in its own name or in  the name of the L/C Administrator to issue, execute and deliver, as the case may  be, each Several Letter of Credit and each amendment to a Several Letter of Credit  and to carry out the purposes of this Agreement with respect to Several Letters of  Credit. Upon request, each Lender shall execute such powers of attorney or other  documents as any beneficiary of any Several Letter of Credit may reasonably  request to evidence the authority of the L/C Administrator to execute and deliver  such Several Letter of Credit and any amendment or other modification thereto on  behalf of the Lenders.  (vii) The Applicable Issuing Party shall act on behalf of the Lenders with  respect to any Letters of Credit issued by it and the documents associated therewith,  





 






14235438v5 27112.00011       38     and the Applicable Issuing Party shall have all of the benefits and immunities  (A) provided to the Administrative Agent in Article IX with respect to any acts  taken or omissions suffered by the Applicable Issuing Party in connection with  Letters of Credit issued by it or proposed to be issued by it and Issuer Documents  pertaining to such Letters of Credit as fully as if the term “Administrative Agent”  as used in Article IX included the Fronting Bank and the L/C Administrator with  respect to such acts or omissions, and (B) as additionally provided herein with  respect to the Fronting Bank and the L/C Administrator.  (b) Procedures for Issuance and Amendment of Letters of Credit; Auto- Renewal Letters of Credit.  (i) Each Letter of Credit shall be issued or amended, as the case may  be, upon the request of the applicable Loan Party delivered to (x) a Fronting Bank,  in the case of Fronted Letters of Credit and (y) the L/C Administrator, in the case  of Several Letters of Credit (with a copy in each case to the Administrative Agent)  in the form of a Letter of Credit Application, appropriately completed and signed  by a Responsible Officer of such Loan Party.  Such Letter of Credit Application  must be received by the Applicable Issuing Party and the Administrative Agent not  later than 11:00 a.m. at least two (2) Business Days (or such later date and time as  the Administrative Agent and the Applicable Issuing Party may agree in a particular  instance in their sole discretion) prior to the proposed issuance date or date of  amendment, as the case may be.  In the case of a request for an initial issuance of a  Letter of Credit, such Letter of Credit Application shall specify in form and detail  satisfactory to the Applicable Issuing Party: (A) the name of the account party,  which shall be the applicable Loan Party; (B) the proposed issuance date of the  requested Letter of Credit (which shall be a Business Day); (C) the amount thereof;  (D) the expiry date thereof; (E) the name and address of the beneficiary thereof;  (F) the documents to be presented by such beneficiary in case of any drawing  thereunder; (G) the full text of any certificate to be presented by such beneficiary  in case of any drawing thereunder; (H) whether such Letter of Credit shall be an  Auto-Renewal Letter of Credit; (I) whether such Letter of Credit is to be a Fronted  Letter of Credit or a Several Letter of Credit (and, in the case of Several Letters of  Credit, in the event a Lender advises the L/C Administrator that such Lender is a  Participating Bank, such Participating Bank’s Applicable Percentage of such  Several Letter of Credit will be issued by the applicable Fronting Bank); (J) whether  such Letter of Credit will be a Secured Letter of Credit or an Unsecured Letter of  Credit; and (K) such other matters as the Applicable Issuing Party may require.  In  the case of a request for an amendment of any outstanding Letter of Credit, such  Letter of Credit Application shall specify in form and detail satisfactory to the  Applicable Issuing Party (1) the Letter of Credit to be amended; (2) the proposed  date of amendment thereof (which shall be a Business Day); (3) the nature of the  proposed amendment; and (4) such other matters as the Applicable Issuing Party  may require.  Additionally, the applicable Loan Party shall furnish to the Applicable  Issuing Party and the Administrative Agent such other documents and information  pertaining to such requested Letter of Credit issuance or amendment, including any  





 






14235438v5 27112.00011       39     Issuer Documents, as the Applicable Issuing Party or the Administrative Agent may  require.  (ii) Promptly after receipt of any Letter of Credit Application, the  Applicable Issuing Party will confirm with the Administrative Agent (by telephone  or in writing) that the Administrative Agent has received a copy of such Letter of  Credit Application from a Loan Party and, if not, the Applicable Issuing Party will  provide the Administrative Agent with a copy thereof.  Unless the Applicable  Issuing Party has received written notice from any Lender, the Administrative  Agent or any Loan Party, at least one Business Day prior to the requested date of  issuance or amendment of the applicable Letter of Credit, that one or more  applicable conditions contained in Article IV shall not then be satisfied, then,  subject to the terms and conditions hereof, the Applicable Issuing Party shall, on  the requested date, issue a Letter of Credit for the account of such Loan Party or  enter into the applicable amendment, as the case may be, in each case in accordance  with the Applicable Issuing Party’s usual and customary business practices.   Immediately upon the issuance of each Fronted Letter of Credit, each Lender shall  be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from  the issuing Fronting Bank a risk participation in such Fronted Letter of Credit in an  amount equal to the product of such Lender’s Applicable Percentage under the  Facility times the amount of such Letter of Credit.  Immediately upon the issuance  of a Several Letter of Credit in which a Fronting Bank has “fronted” for a  Participating Bank, such Participating Bank shall be deemed to, and hereby  irrevocably and unconditionally agrees to, without recourse or warranty, purchase  from the issuing Fronting Bank a risk participation in such Several Letter of Credit  in an amount equal to the product of such Participating Bank’s Applicable  Percentage under the Facility times the amount of such Several Letter of Credit.  (iii) If either Loan Party so requests in any applicable Letter of Credit  Application, the Applicable Issuing Party may, in its sole and absolute discretion,  agree to issue a Letter of Credit that has automatic renewal provisions (each, an  “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of  Credit must permit the Applicable Issuing Party to prevent any such renewal at least  once in each twelve-month period (commencing with the date of issuance of such  Letter of Credit) by giving ninety (90) days’ (or such lesser number of days  specified by the requesting Loan Party in its Letter of Credit Application) prior  notice to the beneficiary thereof (the “Nonrenewal Notice Date”).  Unless otherwise  directed by the Applicable Issuing Party, no Loan Party shall be required to make  a specific request to the Applicable Issuing Party for any such renewal.  Once an  Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to  have authorized (but may not require) the Applicable Issuing Party to permit the  renewal of such Letter of Credit at any time to an expiry date not later than the first  anniversary of the Maturity Date; provided, however, that the Applicable Issuing  Party shall not permit any such renewal if (A) the Applicable Issuing Party has  determined that it would not be permitted, or would have no obligation at such time,  to issue such Letter of Credit in its revised form (as extended) under the terms  hereof (by reason of the provisions of Section 2.03(a)(ii) or (iii) or otherwise), or  





 






14235438v5 27112.00011       40     (B) it has received notice (which may be by telephone or in writing) on or before  the day that is two (2) Business Days before the Nonrenewal Notice Date (1) from  the Administrative Agent that the Required Lenders have elected not to permit such  renewal or (2) from the Administrative Agent, any Lender or any Loan Party that  one or more of the applicable conditions specified in Section 4.02 (other than the  delivery by the Borrower of a Loan Notice) is not then satisfied, and in each such  case directing the Applicable Issuing Party not to permit such extension.  (iv) Promptly after its delivery of any Letter of Credit or any amendment  to a Letter of Credit to an advising bank with respect thereto or to the beneficiary  thereof, the Applicable Issuing Party will also deliver to the Loan Party requesting  the issuance or amendment thereof and the Administrative Agent a true and  complete copy of such Letter of Credit or amendment.  (c) Drawings and Reimbursements; Funding of Participations.  (i) Upon receipt from the beneficiary of any Letter of Credit of any  notice of a drawing (a “Drawing Request”) under such Letter of Credit, the  Applicable Issuing Party shall notify the Loan Party for whose account such Letter  of Credit was issued and the Administrative Agent thereof.  Not later than  11:00 a.m. on the date of any payment by the Applicable Issuing Party under a  Letter of Credit (each such date, an “Honor Date”), such Loan Party shall reimburse  the respective L/C Issuers through the Administrative Agent in immediately  available funds in an amount equal to the amount of such drawing.  If such Loan  Party fails to so reimburse the respective L/C Issuers by such time, the  Administrative Agent shall promptly notify each Lender of the Honor Date, the  amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the  amount of such Lender’s Applicable Percentage thereof under the Facility.  In such  event, the Borrower shall be deemed to have requested a Revolving Borrowing of  Base Rate Loans to be disbursed on the Honor Date in an amount equal to the  Unreimbursed Amount, without regard to the minimum and multiples specified in  Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount  of the unutilized portion of the Aggregate Commitments and the conditions set forth  in Section 4.02 (other than the delivery by the Borrower of a Loan Notice).  Any  notice given by the Applicable Issuing Party or the Administrative Agent pursuant  to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in  writing; provided that the lack of such an immediate confirmation shall not affect  the conclusiveness or binding effect of such notice.  (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i)  make immediately available funds available to the Administrative Agent for the  account of the Applicable Issuing Party at the Administrative Agent’s Office in an  amount equal to its Applicable Percentage under the Facility of the Unreimbursed  Amount not later than 1:00 p.m. on the Honor Date specified in such notice by the  Administrative Agent (the “L/C Advance Date”), whereupon, subject to the  provisions of Section 2.03(c)(iii), each Lender that so makes immediately available  funds available shall be deemed to have made a Base Rate Loan to the Borrower in  such amount.  The Administrative Agent shall remit the funds so received to the  





 






14235438v5 27112.00011       41     Applicable Issuing Party.  To the extent that immediately available funds are  received by the Administrative Agent from the Lenders (or the Fronting Bank on  behalf of a Participating Bank) with respect to a Several Letter of Credit prior to  2:00 p.m. on the L/C Advance Date, the Administrative Agent shall notify the L/C  Administrator and the L/C Administrator shall promptly make such funds available  to the beneficiary of such Several Letter of Credit on such date. To the extent that  the L/C Administrator has not delivered funds to any beneficiary of a Several Letter  of Credit on behalf of a Lender on the L/C Advance Date, because immediately  available funds are received by the Administrative Agent from such Lender:   (A) after 2:00 p.m. on the L/C Advance Date, the L/C Administrator shall make  such funds available to such beneficiary on the next Business Day; (B) prior to  2:00 p.m. on any Business Day after the L/C Advance Date, the L/C Administrator  shall make such funds available to such beneficiary on such Business Day; and  (C) after 2:00 p.m. on any Business Day after the L/C Advance Date, the L/C  Administrator shall make such funds available to such beneficiary on the next  Business Day following such Business Day.  Unless the Administrative Agent or L/C Administrator receives notice from  a Lender prior to any L/C Advance Date with respect to a Several Letter of Credit  that such Lender will not make available as and when required hereunder to the  Administrative Agent the amount of such Lender’s L/C Advance on such L/C  Advance Date, the Administrative Agent and the L/C Administrator may assume  that such Lender has made such amount available to the Administrative Agent in  immediately available funds on such L/C Advance Date and the L/C Administrator  may (but shall not be required), in reliance upon such assumption, make available  to the beneficiary of such Several Letter of Credit on such date such Lender’s L/C  Advance.  (iii) With respect to any Unreimbursed Amount that is not fully  refinanced by a Revolving Borrowing of Base Rate Loans because the conditions  set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower  shall be deemed to have incurred an L/C Borrowing in the amount of the  Unreimbursed Amount that is not so refinanced (x) in the case of Fronted Letters  of Credit, from the issuing Fronting Bank and (y) in the case of Several Letters of  Credit, from the Lenders to the extent that they have provided funds with respect to  such Several Letter of Credit pursuant to Section 2.03(c)(ii), from the Fronting  Bank to the extent it has made funds available on behalf of a Participating Bank or  from the L/C Administrator to the extent it has made funds available on behalf of a  Lender pursuant to Section 2.03(c)(ii).  L/C Advances shall be due and payable on  demand (together with interest) and shall bear interest at the Default Rate.  Each  Lender’s or Participating Bank’s payment to the Administrative Agent for the  account of a Fronting Bank pursuant to Section 2.03(c)(ii) shall be deemed payment  in respect of its participation in such L/C Advance and shall constitute an L/C  Advance from such Lender in satisfaction of its participation obligation under this  Section 2.03.  Any payment by the Borrower in respect of such L/C Advance shall  be made to the Administrative Agent and upon receipt applied by the  Administrative Agent in accordance with Section 2.03(d).  





 






14235438v5 27112.00011       42     (iv) Until each Lender funds its Revolving Loan or L/C Advance  pursuant to this Section 2.03(c) to reimburse a Fronting Bank (or the L/C  Administrator pursuant to Section 2.03(c)(ii)) for any amount drawn under any  Letter of Credit, interest in respect of such Lender’s Applicable Percentage under  the Facility of such amount shall be solely for the account of the relevant Fronting  Bank or the L/C Administrator, as applicable.  (v) Each Lender’s obligation to make Revolving Loans or L/C  Advances to reimburse the relevant Fronting Bank (or the L/C Administrator  pursuant to Section 2.03(c)(ii)) for amounts drawn under Letters of Credit, as  contemplated by this Section 2.03(c), shall be absolute and unconditional and shall  not be affected by any circumstance, including (A) any setoff, counterclaim,  recoupment, defense or other right which such Lender may have against the  Administrative Agent, any Fronting Bank, the L/C Administrator, any Lender, any  Borrower, any beneficiary named in any Letter of Credit, any transferee of any  Letter of Credit (or any Persons for whom any such transferee may be acting) or  any other Person for any reason whatsoever, (B) the occurrence or continuance of  a Default, (C) any lack of validity or enforceability of such Letter of Credit, this  Agreement or any other Loan Document, (D) any draft, certificate or any other  document presented under any 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, (E) the surrender or impairment of any security for the  performance or observance of any of the terms of the Loan Documents, or (F) any  other occurrence, event or condition, whether or not similar to any of the foregoing;  provided, however, that each Lender’s obligation to make Revolving Loans  pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02  (other than delivery by the Borrower of a Loan Notice).  No such making of an L/C  Advance shall relieve or otherwise impair the obligation of the Loan Parties to  reimburse the respective L/C Issuers for the amount of any payment made by the  respective L/C Issuers under any Letter of Credit, together with interest as provided  herein.  (vi) If any Lender fails to make available to the Administrative Agent  for the account of a Fronting Bank or to the L/C Administrator any amount required  to be paid by such Lender pursuant to the foregoing provisions of this  Section 2.03(c) by the time specified in Section 2.03(c)(ii), such Fronting Bank or  the L/C Administrator, as the case may be (acting through the Administrative  Agent, which shall promptly remit to the applicable party amounts recovered for its  account), shall be entitled to recover from such Lender, 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 such Fronting Bank or the  L/C Administrator, as the case may be, at a rate per annum equal to the greater of  the Federal Funds Rate and a rate determined by the applicable L/C Issuer in  accordance with banking industry rules on interbank compensation, plus any  administrative, processing or similar fees customarily charged by the Fronting  Bank or the L/C Administrator in connection with the foregoing. A certificate of  such Fronting Bank or the L/C Administrator, as the case may be submitted to any  





 






14235438v5 27112.00011       43     Lender (through the Administrative Agent) with respect to any amounts owing  under this clause (vi) shall be conclusive absent manifest error.  (d) Repayment of Participations.  (i) At any time after the Applicable Issuing Party has made a payment  under any Letter of Credit and has received from any Lender such Lender’s L/C  Advance in respect of such payment in accordance with Section 2.03(c), if the  Administrative Agent receives any payment in respect of the related Unreimbursed  Amount or interest thereon (whether directly from a Loan Party or otherwise,  including proceeds of Cash Collateral applied thereto by the Administrative Agent),  the Administrative Agent will distribute to such Lender its Applicable Percentage  thereof under the Facility (appropriately adjusted, in the case of interest payments,  to reflect the period of time during which such Lender’s L/C Advance was  outstanding) and in Dollars in the same funds as those received by the  Administrative Agent.  (ii) If any payment received by the Administrative Agent pursuant to  Section 2.03(c)(i) is required to be returned under any of the circumstances  described in Section 10.05 (including pursuant to any settlement entered into by the  applicable Fronting Bank or the L/C Administrator in its discretion), each Lender  shall pay to the Administrative Agent for the account of such Fronting Bank or L/C  Administrator its Applicable Percentage thereof under the Facility on demand of  the Administrative Agent, plus interest thereon from the date of such demand to the  date such amount is returned by such Lender, at a rate per annum equal to the  Federal Funds Rate from time to time in effect.  The obligations of the Lenders  under this clause shall survive the payment in full of the Obligations and the  termination of this Agreement.  (e) Obligations Absolute.  The obligation of each Loan Party to reimburse the  respective L/C Issuers for each drawing under each Letter of Credit issued for its account  and to repay each related L/C Borrowing shall be absolute, unconditional and irrevocable,  and shall be paid strictly in accordance with the terms of this Agreement under all  circumstances, including the following:  (i) any lack of validity or enforceability of such Letter of Credit, this  Agreement, or any other Loan Document;  (ii) the existence of any claim, counterclaim, setoff, defense or other  right that the Borrower or any Subsidiary may have at any time against any  beneficiary or any transferee of such Letter of Credit (or any Person for whom any  such beneficiary or any such transferee may be acting), the Applicable Issuing Party  or any L/C Issuer or any other Person, whether in connection with this Agreement,  the transactions contemplated hereby or by such Letter of Credit or any agreement  or instrument relating thereto, or any unrelated transaction;  (iii) any draft, demand, certificate or other document presented under  such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any  





 






14235438v5 27112.00011       44     respect or any statement therein being untrue or inaccurate in any respect; or any  loss or delay in the transmission or otherwise of any document required in order to  make a drawing under such Letter of Credit;  (iv) any payment by the Applicable Issuing Party under such Letter of  Credit against presentation of a draft or certificate that does not strictly comply with  the terms of such Letter of Credit; or any payment made by the Applicable Issuing  Party under such Letter of Credit to any Person purporting to be a trustee in  bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,  receiver or other representative of or successor to any beneficiary or any transferee  of such Letter of Credit, including any arising in connection with any proceeding  under any Debtor Relief Law; or  (v) any other circumstance or happening whatsoever, whether or not  similar to any of the foregoing, including any other circumstance that might  otherwise constitute a defense available to, or a discharge of, the Borrower or any  Subsidiary.  The Loan Party who shall have requested a Letter of Credit or an amendment  thereto shall promptly examine a copy of each Letter of Credit and each amendment thereto  that is delivered to it and, in the event of any claim of noncompliance with such Loan  Party’s instructions or other irregularity, such Loan Party will immediately notify the  Applicable Issuing Party.  The applicable Loan Party shall be conclusively deemed to have  waived any such claim against the Applicable Issuing Party and its correspondents unless  such notice is given as aforesaid.  (f) Role of Applicable Issuing Party.  Each Lender and the Loan Parties agree  that, in paying any drawing under a Letter of Credit, the Applicable Issuing Party 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.  None of the Applicable Issuing Parties, the Lenders, the  Administrative Agent, any of their respective Related Parties nor any correspondent,  participant or assignee of an Applicable Issuing Party shall be liable to any Lender for  (i) any action taken or omitted in connection herewith at the request or with the approval  of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in  the absence of gross negligence or willful misconduct; or (iii) the due execution,  effectiveness, validity or enforceability of any document or instrument related to any Letter  of Credit or Issuer Document.  The Loan Parties hereby assume all risks of the acts or  omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;  provided, however, that this assumption is not intended to, and shall not, preclude any Loan  Party’s pursuing such rights and remedies as it may have against the beneficiary or  transferee at law or under any other agreement.  None of the Applicable Issuing Parties,  the Lenders, the Administrative Agent, any of their respective Related Parties nor any  correspondent, participant or assignee of an Applicable Issuing Party shall be liable or  responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e);  provided, however, that anything in such clauses or otherwise in this subsection (f) to the  contrary notwithstanding, the Loan Parties may have a claim against an L/C Issuer and/or  





 






14235438v5 27112.00011       45     an Applicable Issuing Party and an L/C Issuer and/or an Applicable Issuing Party may be  liable to the Loan Parties, to the extent, but only to the extent, of any direct, as opposed to  consequential or exemplary, damages suffered by the Loan Parties which the Loan Parties  prove were caused by such L/C Issuer’s and/or the Applicable Issuing Party’s willful  misconduct or gross negligence or such L/C Issuer’s or Applicable Issuing Party’s willful  failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a  sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of  Credit.  In furtherance and not in limitation of the foregoing, the Applicable Issuing Party  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 neither  the Applicable Issuing Party nor any Lender shall be responsible for the validity or  sufficiency of any instrument transferring or assigning or purporting to transfer or assign a  Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,  which may prove to be invalid or ineffective for any reason.  (g) Cash Collateral.  (i) Upon the request of the Administrative Agent, if an L/C Issuer has  honored any full or partial Drawing Request under any Letter of Credit and such  drawing has resulted in an L/C Borrowing, the Loan Parties shall immediately Cash  Collateralize the then Outstanding Amount of all L/C Obligations.  Additionally,  the Loan Parties shall Cash Collateralize each Extended Letter of Credit (in an  amount equal to 103% of the maximum face amount of each Extended Letter of  Credit, calculated in accordance with Section 1.06) by the  date that is 5 Business  Days prior to the Maturity Date (or if such day is not a Business Day, the next  preceding Business Day); provided that if the Loan Parties fail to provide such Cash  Collateral with respect to any such Extended Letter of Credit by such time, such  event shall be treated as a drawing under such Extended Letter of Credit in an  amount equal to 103% of the maximum face amount of each such Letter of Credit,  calculated in accordance with Section 1.06, which shall be reimbursed (or  participations therein funded) in accordance with this Section 2.03, with the  proceeds of Loans (or funded participations) being utilized to provide such Cash  Collateral for such Letter of Credit (provided that for purposes of determining the  usage of the Aggregate Commitment, any such Extended Letter of Credit that has  been, or will concurrently be, Cash Collateralized with proceeds of a Loan, the  portion of such Extended Letter of Credit that has been (or will concurrently be) so  Cash Collateralized will not be deemed to be utilization of the Commitments).  (ii) Sections 2.05(c) and 8.02(c) set forth certain requirements to deliver  Cash Collateral in addition to those set forth in Section 2.03(g)(ii).  For purposes  of this Section 2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize” means  to pledge and deposit Cash with or deliver Cash to the Administrative Agent (or,  with respect to Cash Collateral for Extended Letters of Credit, the Applicable  Issuing Party), for the benefit, as applicable, of the Fronting Banks, L/C Issuers or  the Lenders, as collateral for the L/C Obligations, or obligations of the Fronting  Bank or Lenders to fund or fund participations in respect of Letters of Credit,  pursuant to documentation in form and substance satisfactory to the Administrative  





 






14235438v5 27112.00011       46     Agent or the Applicable Issuing Party, as applicable, the Fronting Banks and the  L/C Issuers (which documents are hereby consented to by the Lenders). Derivatives  of such term have corresponding meanings.  The Loan Parties hereby grant to the  Administrative Agent (or, with respect to Cash Collateral for Extended Letters of  Credit, the Applicable Issuing Party), for the benefit of the Fronting Banks, L/C  Issuers and the Lenders, a security interest in all such cash, deposit accounts and all  balances therein and all proceeds of the foregoing.  Cash Collateral delivered  pursuant to this Section 2.03(g), Section 2.05(c) or Section 8.02(c) shall be  maintained in blocked, non-interest bearing deposit accounts at Bank of America  (or, with respect to Cash Collateral for Extended Letters of Credit, the Applicable  Issuing Party).  (h) Applicability of ISP and UCP.  Unless otherwise expressly agreed by the  Applicable Issuing Party and the applicable Loan Party when a Letter of Credit is issued  the rules of the Uniform Customs and Practice for Documentary Credits (UCP 600), as  most recently published by the International Chamber of Commerce at the time of issuance,  or the ISP, as applicable, shall apply to such Letter of Credit.  (i) Letter of Credit Fees.  Each Loan Party shall pay to the Administrative  Agent for the account of each Lender in accordance with its Applicable Percentage under  the Facility, in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of  Credit issued for such Loan Party’s account equal to (i) in the case of Unsecured Letters of  Credit, the Applicable Rate (calculated per day) times the daily amount available to be  drawn under such Unsecured Letter of Credit and (ii) in the case of Secured Letters of  Credit, 0.50% per annum (calculated per day) times the daily amount available to be drawn  under such Secured Letter of Credit.  For purposes of computing the daily amount available  to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be  determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) computed  on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the  end of each March, June, September and December, commencing with the first such date  to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date  and thereafter on demand.  If there is any change in the Applicable Rate during any quarter,  the daily amount available to be drawn under each Letter of Credit shall be computed and  multiplied by the Applicable Rate separately for each period during such quarter that such  Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein,  upon the request of the Required Lenders, while any Event of Default exists, all Letter of  Credit Fees shall accrue at the Default Rate.  (j) Fronting Fee and Documentary and Processing Charges Payable to Fronting  Bank.  Each Loan Party shall pay directly to each Fronting Bank for its own account, a  fronting fee with respect to each Fronted Letter of Credit issued for such Loan Party’s  account by such Fronting Bank, at the rate per annum agreed to between the Borrower and  such Fronting Bank, calculated based on the daily amount available to be drawn under such  Letter of Credit on a quarterly basis in arrears, and due and payable on the first Business  Day after the end of each March, June, September and December, commencing with the  first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit  Expiration Date and thereafter on demand (it being understood that each Fronting Bank  





 






14235438v5 27112.00011       47     will invoice the Loan Parties directly for amounts due under this Section 2.03(j)).  For  purposes of computing the daily amount available to be drawn under any Letter of Credit,  the amount of such Letter of Credit shall be determined in accordance with Section 1.06.   In addition, the Loan Parties shall pay directly to the Applicable Issuing Party, for its own  account, the customary issuance, presentation, amendment and other processing fees, and  other standard costs and charges, of the Applicable Issuing Party relating to letters of credit  as from time to time in effect.  Such customary fees and standard costs and charges are due  and payable on demand and are nonrefundable.  (k) Several L/C Fronting Fee.  The applicable Fronting Bank shall be paid a  fronting fee (the “Several L/C Fronting Fee”) computed on the risk participation purchased  by each Participating Bank from such Fronting Bank with respect to each Several Letter of  Credit at the rate per annum agreed among such Participating Bank, the Fronting Bank and  the Loan Parties.  Such fee (or portions thereof, as applicable) shall be payable by the  Participating Bank and/or the Loan Parties as may be agreed. Unless otherwise agreed  among, as applicable, a Loan Party, the Fronting Bank, the Participating Bank and the  Administrative Agent, the Several L/C Fronting Fee shall be paid quarterly in arrears and  each Fronting Bank will invoice the applicable party or parties for any Several L/C  Fronting Fees owed to it.  (l) Redesignation of Letters of Credit.  Each Loan Party may from time to time,  in its sole discretion, but subject to the provisions of this Section, elect to redesignate as an  Unsecured Letter of Credit a Letter of Credit which was initially issued as a Secured Letter  of Credit issued for such Loan Party’s account.  Such redesignation shall be accomplished  by the delivery of written notice from such Loan Party to the Administrative Agent at least  five (5) Business Days in advance of the date upon which such redesignation is requested  to become effective, which notice shall identify the applicable Letter of Credit, shall certify  that no Default has occurred and is continuing and shall contain such other information and  be in such form as the Administrative Agent may reasonably request.  The Administrative  Agent shall give prompt notice of its receipt of any such request to the Lenders.  The  Administrative Agent, in reliance upon such request and certification shall (unless any  Lender shall have notified the Administrative Agent in writing that a Default exists) release  from the Collateral Account Eligible Collateral having in the aggregate Adjusted Fair  Market Value equal or approximately equal to the amount of L/C Obligations associated  with such Letter of Credit; provided, however, that in no event shall the Administrative  Agent release Eligible Collateral to the extent that, after giving effect to such release, the  Borrowing Base would be less than the amount of outstanding Secured L/C Obligations.   From and after the date of such release, the applicable Letter of Credit shall be deemed to  be an Unsecured Letter of Credit for all purposes hereof, including without limitation for  purposes of determining the amount of the Letter of Credit Fee payable with respect thereto  pursuant to Section 2.03(i).  (m) Conflict with Issuer Documents.  In the event of any conflict between the  terms hereof and the terms of any Issuer Document, the terms hereof shall control.  (n) Existing Letters of Credit.  The Loan Parties, the L/C Administrator and the  Lenders agree that, as of the Effective Date, (i) each Existing Letter of Credit described on  Schedule 2.03 which is a Several Letter of Credit issued for the account of any Loan Party  





 






14235438v5 27112.00011       48     under the Existing Credit Agreement and which remains outstanding as of the Effective  Date (as amended as contemplated by Section 4.01(f)) shall (A) be deemed issued and  continued under this Agreement as of the Effective Date as a “Several Letter of Credit” all  as set forth on such schedule and (B) shall constitute a “Several Letter of Credit” for all  purposes hereof and (ii) each of the Existing Letters of Credit described on Schedule 2.03  which is a Fronted Letter of Credit shall constitute, for all purposes of this Agreement and  the other Loan Documents, a Fronted Letter of Credit issued and outstanding hereunder,  provided that the L/C Exposure in respect of any Fronted Letters of Credit shall be  automatically reallocated among the Lenders as of the Effective Date based on their  Applicable Percentage after giving effect to the Effective Date.  (o) Upon a Lender becoming a Participating Bank, it shall (i) promptly deliver  a Participating Notice to the Borrower, the Administrative Agent and the L/C  Administrator and (ii) use its commercially reasonable efforts to cause a Lender which is  not a Participating Bank to act as a Fronting Bank for such Participating Bank with respect  to Several Letters of Credit.  2.04 Swing Line Loans.  (a) The Swing Line.  Subject to the terms and conditions set forth herein, the  Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth  in this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the Borrower  from time to time on any Business Day during the Availability Period in an aggregate  amount not to exceed at any time outstanding the amount of the Swing Line Sublimit;  provided, however, that after giving effect to any Swing Line Loan, (i) the Total  Outstandings shall not exceed the Aggregate Commitments, (ii) the aggregate Outstanding  Amount of the Revolving Loans of any Lender (other than the Swing Line Lender), plus  such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,  plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line  Loans shall not exceed such Lender’s Commitment and (iii) the aggregate Outstanding  Amount of the Revolving Loans of the Swing Line Lender, plus the Swing Line Lender’s  Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus the  Outstanding Amount of all Swing Line Loans shall not exceed the Swing Line Lender’s  Commitment, and provided, further, that the Borrower shall not use the proceeds of any  Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing  limits, and subject to the other terms and conditions hereof, the Borrower may borrow  under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.   Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a  Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and  unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such  Swing Line Loan in an amount equal to the product of such Lender’s Applicable  Percentage under the Facility times the amount of such Swing Line Loan.  (b) Borrowing Procedures.  Each Swing Line Borrowing shall be made upon  the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent,  which may be given by telephone.  Each such notice must be received by the Swing Line  Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing  date, and shall specify (i) the amount to be borrowed, which shall be a minimum of  





 






14235438v5 27112.00011       49     $250,000, and (ii) the requested borrowing date, which shall be a Business Day.  Each such  telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and  the Administrative Agent of a written Swing Line Loan Notice, appropriately completed  and signed by a Responsible Officer of the Borrower.  Promptly after receipt by the Swing  Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will  confirm with the Administrative Agent (by telephone or in writing) that the Administrative  Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender  will notify the Administrative Agent (by telephone or in writing) of the contents thereof.   Unless the Swing Line Lender has received notice (by telephone or in writing) from the  Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the  date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to  make such Swing Line Loan as a result of the limitations set forth in the proviso to the first  sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified  in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the  Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such  Swing Line Loan Notice, make the amount of its Swing Line Loan available to the  Borrower at its office by crediting the account of the Borrower on the books of the Swing  Line Lender in immediately available funds.  (c) Refinancing of Swing Line Loans.  (i) The Swing Line Lender at any time in its sole and absolute  discretion may request, on behalf of the Borrower (which hereby irrevocably  authorizes the Swing Line Lender to so request on its behalf), that each Lender  make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage  of the amount of Swing Line Loans then outstanding.  Such request shall be made  in writing (which written request shall be deemed to be a Loan Notice for a  Revolving Loan for purposes hereof) and in accordance with the requirements of  Section 2.02, without regard to the minimum and multiples specified therein for the  principal amount of Base Rate Loans, but subject to the unutilized portion of the  Aggregate Commitments and the conditions set forth in Section 4.02.  The Swing  Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice  promptly after delivering such notice to the Administrative Agent.  Each Lender  shall make an amount equal to its Applicable Percentage of the amount specified in  such Loan Notice available to the Administrative Agent in immediately available  funds for the account of the Swing Line Lender at the Administrative Agent’s  Office not later than 1:00 p.m. on the day specified in such Loan Notice,  whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds  available shall be deemed to have made a Base Rate Loan to the Borrower in such  amount.  The Administrative Agent shall remit the funds so received to the Swing  Line Lender.  (ii) If for any reason any Swing Line Loan cannot be refinanced by such  a Revolving Borrowing in accordance with Section 2.04(c)(i), the request for Base  Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed  to be a request by the Swing Line Lender that each of the Lenders fund its risk  participation in the relevant Swing Line Loan and each Lender’s payment to the  





 






14235438v5 27112.00011       50     Administrative Agent for the account of the Swing Line Lender pursuant to  Section 2.04(c)(i) shall be deemed payment in respect of such participation.  (iii) If any Lender fails to make available to the Administrative Agent  for the account of the Swing Line Lender any amount required to be paid by such  Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time  specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover  from such Lender (acting through the Administrative Agent), on demand, such  amount with interest thereon for the period from the date such payment is required  to the date on which such payment is immediately available to the Swing Line  Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate  determined by the Swing Line Lender in accordance with banking industry rules on  interbank compensation.  A certificate of the Swing Line Lender submitted to any  Lender (through the Administrative Agent) with respect to any amounts owing  under this clause (iii) shall be conclusive absent manifest error.  (iv) Each Lender’s obligation to make Revolving Loans or to purchase  and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c)  shall be absolute and unconditional and shall not be affected by any circumstance,  including (A) any setoff, counterclaim, recoupment, defense or other right which  such Lender may have against the Swing Line Lender, the Borrower or any other  Person for any reason whatsoever, (B) the occurrence or continuance of a Default,  or (C) any other occurrence, event or condition, whether or not similar to any of the  foregoing; provided, however, that each Lender’s obligation to make Revolving  Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in  Section 4.02.  No such funding of risk participations shall relieve or otherwise  impair the obligation of any Borrower to repay Swing Line Loans, together with  interest as provided herein.  (d) Repayment of Participations.  (i) At any time after any Lender has purchased and funded a risk  participation in a Swing Line Loan, if the Swing Line Lender receives any payment  on account of such Swing Line Loan, the Swing Line Lender will distribute to such  Lender its Applicable Percentage of such payment (appropriately adjusted, in the  case of interest payments, to reflect the period of time during which such Lender’s  risk participation was funded) in the same funds as those received by the Swing  Line Lender.  (ii) If any payment received by the Swing Line Lender in respect of  principal or interest on any Swing Line Loan is required to be returned by the Swing  Line Lender under any of the circumstances described in Section 10.05 (including  pursuant to any settlement entered into by the Swing Line Lender in its discretion),  each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof  on demand of the Administrative Agent, plus interest thereon from the date of such  demand to the date such amount is returned, at a rate per annum equal to the Federal  Funds Rate.  The Administrative Agent will make such demand upon the request  of the Swing Line Lender.  The obligations of the Lenders under this clause shall  





 






14235438v5 27112.00011       51     survive the payment in full of the Obligations and the termination of this  Agreement.  (e) Interest for Account of Swing Line Lender.  The Swing Line Lender shall  be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each  Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to  refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect  of such Applicable Percentage shall be solely for the account of the Swing Line Lender.  (f) Payments Directly to Swing Line Lender.  The Borrower shall make all  payments of principal and interest in respect of the Swing Line Loans directly to the Swing  Line Lender.  (g) Defaulting Lenders.  Notwithstanding anything to the contrary contained in  this Section 2.04, the Swing Line Lender shall not be obligated to make any Swing Line  Loan at a time when (i) any other Lender is a Defaulting Lender and (ii) the Swing Line  Lender has (or after giving effect to the making of such Swing Line Loan would have)  Fronting Exposure (after giving effect to Section 2.15(c)), unless the Swing Line Lender  has entered into arrangements (which may include Cash Collateralization) with the  Borrower or such Defaulting Lender which are satisfactory to the Swing Line Lender to  eliminate the Swing Line Lender’s Fronting Exposure (after giving effect to  Section 2.15(c)) with respect to any such Defaulting Lender.  2.05 Prepayments.  (a) The Borrower may, upon notice to the Administrative Agent, at any time or  from time to time voluntarily prepay Revolving Loans in whole or in part without premium  or penalty; provided that (i) such notice must be received by the Administrative Agent not  later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of  Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any  prepayment of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a  whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate  Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess  thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each  such notice shall specify the date and amount of such prepayment and the Type(s) of Loans  to be prepaid.  The Administrative Agent will promptly notify each Lender of its receipt of  each such notice, and of the amount of such Lender’s Applicable Percentage of such  prepayment.  If such notice is given by the Borrower, the Borrower shall make such  prepayment and the payment amount specified in such notice shall be due and payable on  the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall be  accompanied by all accrued interest on the amount prepaid, together with any additional  amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the  Revolving Loans of the Lenders in accordance with their respective Applicable  Percentages.  (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to  the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line  Loans in whole or in part without premium or penalty; provided that (i) such notice must  





 






14235438v5 27112.00011       52     be received by the Swing Line Lender and the Administrative Agent not later than  1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a  minimum principal amount of $250,000 or in such lesser principal amount as may be  outstanding.  Each such notice shall specify the date and amount of such prepayment.  If  such notice is given by the Borrower, the Borrower shall make such prepayment and the  payment amount specified in such notice shall be due and payable on the date specified  therein.  (c) If for any reason the Total Outstandings at any time exceed the Aggregate  Commitments then in effect, the Borrower shall immediately prepay Loans and/or Cash  Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,  however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations  pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total  Outstandings exceed the Aggregate Commitments then in effect.  2.06 Termination or Reduction of Commitments.  The Borrower may, upon notice to  the Administrative Agent, terminate the Aggregate Commitments, or from time to time  permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be  received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days prior to the  date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of  $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not  terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any  concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate  Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Commitments, the  Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate  Commitments, such sublimit shall be automatically reduced by the amount of such excess.  The  Administrative Agent will promptly notify the Lenders of any such notice of termination or  reduction of the Aggregate Commitments.  Any reduction of the Aggregate Commitments shall be  applied to the Commitment of each Lender according to its Applicable Percentage of the Facility.   All fees accrued until the effective date of any termination of the Aggregate Commitments shall  be paid on the effective date of such termination.  2.07 Repayment of Loans.  (a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate  principal amount of Revolving Loans outstanding on such date.  (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of  (i) the date seven (7) days after such Loan is made and (ii) the Maturity Date.  2.08 Interest.  (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate  Loan shall bear interest on the outstanding principal amount thereof for each Interest Period  at a rate per annum equal to the lesser of (x) the Highest Lawful Rate and (y) the Eurodollar  Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear  interest on the outstanding principal amount thereof from the applicable borrowing date at  a rate per annum equal to the lesser of (x) the Highest Lawful Rate and (y) the Base Rate  





 






14235438v5 27112.00011       53     plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the  outstanding principal amount thereof from the applicable borrowing date at a rate per  annum equal to the lesser of (x) the Highest Lawful Rate and (y) the Base Rate plus the  Applicable Rate.  (b) (i) If any amount of principal of any Loan is not paid when due,  whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear  interest at a fluctuating interest rate per annum at all times equal to the lesser of (x) the  Default Rate and (y) the Highest Lawful Rate, to the fullest extent permitted by Applicable  Law.  (ii) If any amount (other than principal of any Loan) payable by the  Borrower under any Loan Document is not paid when due, whether at stated  maturity, by acceleration or otherwise, then upon the request of the Required  Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per  annum at all times equal to the lesser of (x) the Default Rate and (y) the Highest  Lawful Rate, to the fullest extent permitted by Applicable Law.  (iii) Upon the request of the Required Lenders, while any Event of  Default exists, the Borrower shall pay interest on the principal amount of all  outstanding Obligations hereunder at a fluctuating interest rate per annum at all  times equal to the lesser of (x) the Default Rate and (y) the Highest Lawful Rate, to  the fullest extent permitted by Applicable Law.  (iv) Accrued and unpaid interest on past due amounts (including interest  on past due interest) shall be due and payable upon demand.  (c) Interest on each Loan shall be due and payable in arrears on each Interest  Payment Date applicable thereto and at such other times as may be specified herein.   Interest hereunder shall be due and payable in accordance with the terms hereof before and  after judgment, and before and after the commencement of any proceeding under any  Debtor Relief Law.  2.09 Fees.  In addition to certain fees described in subsections (i) and (j) of Section 2.03:  (a) Facility Fee.  The Borrower shall pay to the Administrative Agent for the  account of each Lender in accordance with its Applicable Percentage under the Facility, a  facility fee (“Facility Fee”) equal to the Applicable Rate (calculated per day) times the  actual daily amount of the Aggregate Commitments (or, if the Aggregate Commitments  have terminated, on the Outstanding Amount of all Revolving Loans, Swing Line Loans  and L/C Obligations), regardless of usage.  The Facility Fee shall accrue at all times during  the Availability Period (and thereafter so long as any Revolving Loans, Swing Line Loans  or L/C Obligations remain outstanding), including at any time during which one or more  of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears  on the last Business Day of each March, June, September and December, commencing with  the first such date to occur after the Effective Date, and on the Maturity Date (and, if  applicable, thereafter on demand).  The Facility Fee shall be calculated quarterly in arrears,  and if there is any change in the Applicable Rate during any quarter, the actual daily amount  





 






14235438v5 27112.00011       54     shall be computed and multiplied by the Applicable Rate separately for each period during  such quarter that such Applicable Rate was in effect.  (b) Other Fees.  (i) The Borrower shall pay to the Joint Arrangers and the  Administrative Agent for their own respective accounts fees in the amounts and at  the times specified in the Fee Letters.  Such fees shall be fully earned when paid  and shall not be refundable for any reason whatsoever.  (ii) The Borrower shall pay to the Lenders such fees as shall have been  separately agreed upon in writing in the amounts and at the times so specified.  Such  fees shall be fully earned when paid and shall not be refundable for any reason  whatsoever.  2.10 Computation of Interest and Fees.  All computations of interest for Base Rate  Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made  on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other  computations of fees and interest shall be made on the basis of a 360-day year and actual days  elapsed (which results in more fees or interest, as applicable, being paid than if computed on the  basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made,  and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such  portion is paid, provided that any Loan that is repaid on the same day on which it is made shall,  subject to Section 2.12(a), bear interest for one day.  Each determination by the Administrative  Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent  manifest error.  2.11 Evidence of Debt.  (a) The Credit Extensions made by each Lender shall be evidenced by one or  more accounts or records maintained by such Lender and by the Administrative Agent in  the ordinary course of business.  The accounts or records maintained by the Administrative  Agent and each Lender shall be conclusive absent manifest error of the amount of the  Credit Extensions made by the Lenders to the Loan Parties and the interest and payments  thereon.  Any failure to so record or any error in doing so shall not, however, limit or  otherwise affect the obligation of the Loan Parties hereunder to pay any amount owing  with respect to the Obligations.  In the event of any conflict between the accounts and  records maintained by any Lender and the accounts and records of the Administrative  Agent in respect of such matters, the accounts and records of the Administrative Agent  shall control in the absence of manifest error.  Upon the request of any Lender made  through the Administrative Agent, the Borrower shall execute and deliver to such Lender  (through the Administrative Agent) a Note in the applicable form, which shall evidence  such Lender’s Loans in addition to such accounts or records.  Each Lender may attach  schedules to its Note and endorse thereon the date, Type (if applicable), amount and  maturity of its Loans and payments with respect thereto.  (b) In addition to the accounts and records referred to in subsection (a), each  Lender and the Administrative Agent shall maintain in accordance with its usual practice  





 






14235438v5 27112.00011       55     accounts or records evidencing the purchases and sales by such Lender of participations in  Letters of Credit and Swing Line Loans.  In the event of any conflict between the accounts  and records maintained by the Administrative Agent and the accounts and records of any  Lender in respect of such matters, the accounts and records of the Administrative Agent  shall control in the absence of manifest error.  2.12 Payments Generally; Administrative Agent’s Clawback.  (a) General.  All payments to be made by the Loan Parties shall be made free  and clear of and without condition or deduction for any counterclaim, defense, recoupment  or setoff.  All payments by the Loan Parties hereunder shall be made to the Administrative  Agent, for the account of the respective Lenders to which such payment is owed, at the  Administrative Agent’s Office in Dollars and in immediately available funds not later than  2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute  to each Lender its Applicable Percentage (or other applicable share as provided herein) of  such payment with respect to principal and interest on Loans in like funds as received by  wire transfer to such Lender’s Lending Office.  All payments received by the  Administrative Agent after 2:00 p.m., shall be deemed received on the next succeeding  Business Day and any applicable interest or fee shall continue to accrue.  If any payment  to be made by the Borrower shall come due on a day other than a Business Day, payment  shall be made on the next following Business Day, and such extension of time shall be  reflected in computing interest or fees, as the case may be.  (b) Funding by Lenders; Presumption by Administrative Agent.  Unless the  Administrative Agent shall have received notice from a Lender prior to the proposed date  of any Revolving Borrowing that such Lender will not make available to the Administrative  Agent such Lender’s share of such Revolving Borrowing, the Administrative Agent may  assume that such Lender has made such share available on such date in accordance with  Section 2.02 and may, in reliance upon such assumption, make available to the Borrower  a corresponding amount.  In such event, if a Lender has not in fact made its share of the  applicable Revolving Borrowing available to the Administrative Agent, then the applicable  Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on  demand such corresponding amount in immediately available funds with interest thereon,  for each day from and including the date such amount is made available to the Borrower  to but excluding the date of payment to the Administrative Agent, at (A) in the case of a  payment to be made by such Lender, the greater of the Federal Funds Rate and a rate  determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation, plus any administrative, processing or similar fees customarily  charged by the Administrative Agent in connection with the foregoing and (B) in the case  of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.   If the Borrower and such Lender shall pay such interest to the Administrative Agent for  the same or an overlapping period, the Administrative Agent shall promptly remit to the  Borrower the amount of such interest paid by the Borrower for such period.  If such Lender  pays its share of the applicable Revolving Borrowing to the Administrative Agent, then the  amount so paid shall constitute such Lender’s Revolving Loan included in such Revolving  Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the  





 






14235438v5 27112.00011       56     Borrower may have against a Lender that shall have failed to make such payment to the  Administrative Agent.  (c) Payments by Loan Parties; Presumptions by Administrative Agent.  Unless  the Administrative Agent shall have received notice from any Loan Party prior to the date  on which any payment is due to the Administrative Agent for the account of the Lenders,  a Fronting Bank or an L/C Issuer that the Loan Parties will not make such payment, the  Administrative Agent may assume that the Loan Parties have made such payment on such  date in accordance herewith and may, in reliance upon such assumption, distribute to the  Lenders, such Fronting Bank or such L/C Issuer, as the case may be, the amount due.  With  respect to any payment that the Administrative Agent makes for the account of the Lenders  or an L/C Issuer hereunder as to which the Administrative Agent determines (which  determination shall be conclusive absent manifest error) that any of the following applies  (such payment referred to as the “Rescindable Amount”): (1) the Loan Parties have not in  fact made such payment; (2) the Administrative Agent has made a payment in excess of  the amount so paid by the Loan Parties (whether or not then owed); or (3) the  Administrative Agent has for any reason otherwise erroneously made such payment; then  each of the Lenders, Fronting Banks and L/C Issuers, as the case may be, severally agrees  to repay to the Administrative Agent forthwith on demand the Rescindable Amount so  distributed to such Person, in immediately available funds with interest thereon, for each  day from and including the date such amount is distributed to it to but excluding the date  of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate  determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation.  A notice of the Administrative Agent to any Lender or a Loan Party with respect to any  amounts owing under subsections (b) and (c) shall be conclusive, absent manifest error.  (d) Failure to Satisfy Conditions Precedent.  If any Lender makes available to  the Administrative Agent funds for any Loan to be made by such Lender as provided in the  foregoing provisions of this Article II, and such funds are not made available to the  Borrower by the Administrative Agent because the conditions to the applicable Credit  Extension set forth in Article IV are not satisfied or waived in accordance with the terms  hereof, the Administrative Agent shall return such funds (in like funds as received from  such Lender) to such Lender, without interest.  (e) Obligations of Lenders Several.  The obligations of the Lenders hereunder  to make Revolving Loans, to fund Several Letters of Credit, to purchase and fund  participations in Fronted Letters of Credit and Swing Line Loans and to make payments  pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make  any Revolving Loan, to fund any Several Letter of Credit, to purchase and fund such  participations or to make any payment under Section 10.04(c) on any date required  hereunder shall not relieve any other Lender of its corresponding obligation to do so on  such date, and no Lender shall be responsible for the failure of any other Lender to so make  its Revolving Loan, to purchase its participation or to make its payment under  Section 10.04(c).  





 






14235438v5 27112.00011       57     (f) Funding Source.  Nothing herein shall be deemed to obligate any Lender to  obtain the funds for any Loan in any particular place or manner or to constitute a  representation by any Lender that it has obtained or will obtain the funds for any Loan in  any particular place or manner.  2.13 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of  setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on  any of the Revolving Loans made by it, or the participations in L/C Obligations or in Swing Line  Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate  amount of such Revolving Loans or participations and accrued interest thereon greater than its pro  rata share thereof as provided herein, then the Lender receiving such greater proportion shall  (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)  participations in the Revolving Loans and subparticipations in L/C Obligations and Swing Line  Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit  of all such payments shall be shared by the Lenders ratably in accordance with the aggregate  amount of principal of and accrued interest on their respective Revolving Loans and other amounts  owing them, provided that:  (i) if any such participations or subparticipations are purchased and all  or any portion of the payment giving rise thereto is recovered, such participations  or subparticipations shall be rescinded and the purchase price restored to the extent  of such recovery, without interest; and  (ii) the provisions of this Section shall not be construed to apply to  (x) any payment made by or on behalf of the Loan Parties pursuant to and in  accordance with the express terms of this Agreement (including the application of  funds arising from the existence of a Defaulting Lender), (y) the application of Cash  Collateral provided for in Section 2.15, (z) any payment obtained by a Lender as  consideration for the assignment of or sale of a participation in any of its Revolving  Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee  or participant, other than an assignment to the Borrower or any Subsidiary thereof  (as to which the provisions of this Section shall apply).  Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do  so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing  arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect  to such participation as fully as if such Lender were a direct creditor of such Loan Party in the  amount of such participation.  2.14 Increase in Commitments.  (a) Request for Increase.  Provided there exists no Default or Event of Default,  upon notice to the Administrative Agent, the Borrower may from time to time request an  increase in the Aggregate Commitments by an amount (for all such requests) not exceeding  $250,000,000; provided that (i) any such request for an increase shall be in a minimum  amount of $25,000,000 and (ii) the Borrower may make a maximum of two such requests  in any calendar year.  





 






14235438v5 27112.00011       58     (b) Proposed Lenders.  Any proposed increase in the Aggregate Commitments  may be requested from existing Lenders, new prospective lenders (which are Persons  which would be permitted to be assignees pursuant to Section 10.06 and are approved by  the Administrative Agent, the L/C Administrator, the Fronting Banks and the Swing Line  Lender, which approvals shall not be unreasonably withheld), or a combination thereof, as  selected by, and with such allocations of committed amounts as may be determined by, the  lead arranger(s) thereof and/or the Borrower, provided that any incremental Commitment  provided by a Person not already a Lender shall be in a principal amount of $5,000,000 or  an integral multiple of $500,000 in excess thereof. Any Lender approached to provide all  or a portion of the incremental Commitment may elect or decline, in its sole discretion, to  provide an incremental Commitment.  (c) Notification by Administrative Agent; Additional Lenders.  If the  Aggregate Commitments are to be increased in accordance with this Section, the  Administrative Agent and the Borrower shall determine the effective date (the “Increase  Effective Date”) and the final allocation of such increase.  The Administrative Agent shall  promptly notify the Borrower and the Lenders of the final allocation of such increase and  the Increase Effective Date.  As of the Increase Effective Date, the Credit Agreement shall  be amended to reflect the new or incremental Commitments of the Lenders or other Persons  providing such incremental Commitments.  Such amendment shall be executed and  delivered by the Administrative Agent, the Loan Parties and each Lender and other Person  providing such incremental Commitments without the consent of any other party and shall  be binding on all parties hereto.  Such amendment shall be in form and substance  reasonably satisfactory to the Administrative Agent.  (d) Conditions to Effectiveness of Increase.  As a condition precedent to such  increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan  Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed  by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions  adopted by such Loan Party approving or consenting to such increase, and (ii) in the case  of the Borrower, certifying that, before and after giving effect to such increase, (A) the  representations and warranties contained in Article V and the other Loan Documents are  true and correct on and as of the Increase Effective Date, except to the extent that such  representations and warranties specifically refer to an earlier date, in which case they are  true and correct as of such earlier date, and except that for purposes of this Section 2.14,  the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall  be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),  respectively, of Section 6.01, and (B) no Default exists.  Any increase of the Aggregate  Commitments pursuant to this Section shall also be subject to receipt by the Administrative  Agent from the Loan Parties of such supplemental certificates and other customary  documents as the Administrative Agent may reasonably request.  (e) Reallocation Upon Increase.  On the Increase Effective Date the outstanding  Revolving Loans and Applicable Percentages of Swing Line Loans and L/C Obligations  will be reallocated by the Administrative Agent among the Lenders (including any new  Lenders) in accordance with their revised Applicable Percentages under the Facility (and  the Lenders (including any new Lenders) agree to make all payments and adjustments  





 






14235438v5 27112.00011       59     necessary to effect such reallocation and the Borrower shall pay any and all costs required  pursuant to Section 3.05 in connection with such reallocation as if such reallocation were  a repayment).  (f) Revised Percentages and Letter of Credit Amendments.  The Administrative  Agent shall promptly notify the Lenders of the new Applicable Percentages under the  Facility after giving effect to each increase in the Aggregate Commitments pursuant hereto.   Promptly after the date of each such increase, the L/C Administrator shall amend the  outstanding Several Letters of Credit to reflect the new “Commitment Share” of each  Lender (including any new Lenders) and prior to the date a Several Letter of Credit has  been amended to give effect to such new “Commitment Share”, each new Lender shall be  deemed to irrevocably and unconditionally purchase from each Lender who has issued such  Several Letter of Credit, a risk participation in such Several Letter of Credit in an amount  such that after giving effect to such purchase, each Lender (including any new Lender) has  its Applicable Percentage of such Several Letter of Credit.  (g) Conflicting Provisions.  This Section shall supersede any provisions in  Sections 2.13 or 10.01 to the contrary.  2.15 Defaulting Lenders.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender  becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting  Lender, to the extent permitted by Applicable Law:  (a) Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be  restricted as set forth in the definition of “Required Lenders” and in Section 10.01.  (b) Reallocation of Payments.  Any payment of principal, interest, fees or other  amounts received by the Administrative Agent for the account of such Defaulting Lender  (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and  including any amounts made available to the Administrative Agent for the account of such  Defaulting Lender pursuant to Section 10.04), shall be applied at such time or times as may  be determined by the Administrative Agent as follows:  first, to the payment on a pro rata  basis of any amounts owing by such Defaulting Lender to the Administrative Agent or L/C  Administrator hereunder; second, to the payment on a pro rata basis of any amounts owing  by such Defaulting Lender (including amounts owed in its capacity as a Participating Bank)  to the Fronting Banks and/or the Swing Line Lender hereunder; third, if so determined by  the Administrative Agent or requested by a Fronting Bank and/or the Swing Line Lender,  to be held as Cash Collateral for future funding obligations of such Defaulting Lender of  any participation in any Swing Line Loan or Fronted Letter of Credit or Several Letter of  Credit as to which it is a Participating Bank; fourth, as the Borrower may request (so long  as no Default exists), to the funding of any Loan or Cash Collateralization of any Several  Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion  thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if  so determined by the Administrative Agent and the Borrower, to be held in a non-interest  bearing deposit account and released in order to satisfy obligations of such Defaulting  





 






14235438v5 27112.00011       60     Lender to fund Loans or Several Letters of Credit under this Agreement; sixth, to the  payment of any amounts owing to the Administrative Agent, the Lenders, the Fronting  Banks or the Swing Line Lender as a result of any judgment of a court of competent  jurisdiction obtained by the Administrative Agent, any Lender, any Fronting Bank or the  Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s  breach of its obligations under this Agreement; seventh, so long as no Default exists, to the  payment of any amounts owing to the Borrower as a result of any judgment of a court of  competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result  of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to  such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;  provided that if (i) such payment is a payment of the principal amount of any Revolving  Loans or funded participations in Swing Line Loans or Letters of Credit in respect of which  such Defaulting Lender has not fully funded its appropriate share and (ii) such Revolving  Loans or funded participations in Swing Line Loans or Letters of Credit were made at a  time when the conditions set forth in Section 4.01 or 4.02, as applicable, were satisfied or  waived, such payment shall be applied solely to pay the Revolving Loans of, and funded  participations in Swing Line Loans or Letters of Credit owed to, all non-Defaulting Lenders  on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or  funded participations in Swing Line Loans or Letters of Credit owed to, such Defaulting  Lender.  Any payments, prepayments or other amounts paid or payable to a Defaulting  Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post  Cash Collateral pursuant to this Section 2.15(b) shall be deemed paid to and redirected by  such Defaulting Lender, and each Lender irrevocably consents thereto.  (c) Reallocation of Applicable Percentages to Reduce Fronting Exposure.   During any period in which there is a Defaulting Lender, for purposes of computing the  amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund  participations in Swing Line Loans or Fronted Letters of Credit pursuant to Section 2.04  and Section 2.03(c), respectively, the “Applicable Percentage” of each non-Defaulting  Lender shall be computed without giving effect to the Commitment of such Defaulting  Lender; provided that (i) each such reallocation shall be given effect only if, at the date the  applicable Lender becomes a Defaulting Lender the conditions set forth in Section 4.02(b)  (as if a new Letter of Credit were being requested) and Section 4.02(c) are satisfied at the  time of such reallocation (and, unless the Borrower shall have otherwise notified the  Administrative Agent at such time, the Borrower shall be deemed to have represented and  warranted that such conditions are satisfied at such time), and (ii) the aggregate obligation  of each non-Defaulting Lender to issue, acquire, refinance or fund participations in Fronted  Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of  (A) the Commitment of that non-Defaulting Lender minus (B) the aggregate outstanding  principal amount of the Loans of that Lender.  Solely to the extent that a Defaulting Lender  is a Participating Bank with respect to any Several Letter of Credit, the foregoing  provisions with respect to the obligations of non-Defaulting Lenders to acquire or fund  participations in Fronted Letters of Credit from the Fronting Bank for such Fronted Letter  of Credit shall be applicable mutatis mutandis to the determination of their obligations to  acquire or fund participations in such Several Letter of Credit from the Lender which acted  as Fronting Bank for such Defaulting Lender with respect to such Several Letter of Credit  (i.e., subject to the proviso above, the non-Defaulting Lenders shall be obligated to acquire  





 






14235438v5 27112.00011       61     or fund such participations from the applicable Fronting Bank to the extent of their  Applicable Percentages (as adjusted hereby) of the obligations of such Defaulting Lender  to the applicable Fronting Bank in respect of such Several Letter of Credit).  (d) Cash Collateral for Letters of Credit.  Promptly on demand by the Fronting  Banks or the Administrative Agent from time to time, the Borrower shall deliver to the  Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting  Exposure with respect to the Fronting Banks (after giving effect to Section 2.15(c)) on  terms reasonably satisfactory to the Administrative Agent and the Fronting Banks.  Any  such Cash Collateral shall be deposited in a separate account with the Administrative  Agent, subject to the exclusive dominion and control of the Administrative Agent, as  collateral (solely for the benefit of the Fronting Banks) for the payment and performance  of each Defaulting Lender’s Applicable Percentage of outstanding L/C Obligations.   Moneys in such account shall be applied by the Administrative Agent to reimburse the  Fronting Banks immediately for each Defaulting Lender’s Applicable Percentage of any  drawing under any Letter of Credit which has not otherwise been reimbursed by the  Borrower (including, without limitation, through a Loan) or such Defaulting Lender.  (e) Prepayment of Swing Line Loans.  Promptly on demand by the Swing Line  Lender or the Administrative Agent from time to time, the Borrower shall prepay Swing  Line Loans in an amount of all Fronting Exposure with respect to the Swing Line Lender  for which Cash Collateralization or other credit support acceptable to the Swing Line  Lender shall not have been provided (after giving effect to Section 2.15(c)).  (f) Certain Fees.  For any period during which such Lender is a Defaulting  Lender, such Defaulting Lender (i) shall not be entitled to receive any Facility Fee pursuant  to Section 2.09(a) in respect of any unutilized portion of the Commitment of such  Defaulting Lender (and the Borrower shall not be required to pay any such fee that  otherwise would have been required to have been paid to such Defaulting Lender), and  (ii) shall not be entitled to receive any Letter of Credit commissions pursuant to  Section 2.03(i) otherwise payable to the account of a Defaulting Lender with respect to any  Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral or  other credit support arrangements satisfactory to the Fronting Banks pursuant to  Section 2.15(d), but instead, the Borrower shall pay to the non-Defaulting Lenders the  amount of such Letter of Credit commissions in accordance with the upward adjustments  in their respective Applicable Percentages allocable to such Letter of Credit pursuant to  Section 2.15(c), with the balance of such fee, if any, payable to the applicable Fronting  Bank for its own account.  (g) Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the  Swing Line Lender and the Fronting Banks agree in writing in their sole discretion that a  Defaulting Lender should no longer be deemed to be a Defaulting Lender, the  Administrative Agent will so notify the parties hereto, whereupon as of the date specified  in such notice and subject to any conditions set forth therein (which may include  arrangements with respect to any Cash Collateral), that Lender will, to the extent  applicable, purchase at par that portion of outstanding Loans of the other Lenders or take  such other actions as the Administrative Agent may determine to be necessary to cause the  Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans  





 






14235438v5 27112.00011       62     to be held on a pro rata basis by the Lenders in accordance with their Applicable  Percentages (without giving effect to Section 2.15(c)), whereupon such Lender will cease  to be a Defaulting Lender; provided, that no adjustments will be made retroactively with  respect to fees accrued or payments made by or on behalf of the Borrower while 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  such Lender’s having been a Defaulting Lender.  2.16 Extension of Maturity Date.  (a) Requests for Extension. The Borrower may, by notice to the Administrative  Agent (who shall promptly notify the Lenders) not earlier than 60 days and not later than  35 days prior to the first anniversary of the Effective Date and the second anniversary of  the Effective Date, (each an “Extension Date”), request that each Lender extend such  Lender’s Maturity Date for an additional one-year period from the Maturity Date then in  effect hereunder (the “Existing Termination Date”).  (b) Lender Elections to Extend. Each Lender, acting in its sole and individual  discretion, shall, by notice to the Administrative Agent given not later than the date that is  ten (10) Business Days after receipt of notice from the Administrative Agent of the  Borrower’s request for an extension (the “Notice Date”), advise the Administrative Agent  whether or not such Lender agrees to such extension (each such Lender that determines to  so extend its Maturity Date, being an “Extending Lender” and each Lender that determines  not to so extend its Maturity Date, being a “Non-Extending Lender”). In the event that a  Lender that does not so advise the Administrative Agent on or before the Notice Date such  Lender shall be deemed to be a Non-Extending Lender. The election of any Lender to agree  to such extension shall not obligate any other Lender to so agree.  (c) Notification by Administrative Agent. The Administrative Agent shall  notify the Borrower of each Lender’s determination under this Section no later than the  date 15 days prior to the applicable Extension Date (or, if such date is not a Business Day,  on the next preceding Business Day).  (d) Additional Commitment Lenders. If (and only if) the Required Lenders  have agreed to extend the Maturity Date then in effect hereunder, the Borrower shall have  the right at any time prior to the date 30 days prior to the existing Maturity Date applicable  to any Non-Extending Lender to replace such Non-Extending Lender with, and add as  “Lenders” under this Agreement, one or more Persons which would be permitted assignees  pursuant to Section 10.06 (each, an “Additional Commitment Lender”) in accordance with  the provisions contained in Section 10.06, each of which Additional Commitment Lenders  shall have entered into an Assignment Agreement pursuant to which such Additional  Commitment Lender shall, effective as of the date of the Assignment Agreement,  undertake a Commitment (and, if any such Additional Commitment Lender is already a  Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder on  such date).  





 






14235438v5 27112.00011       63     (e) Minimum Extension Requirement. If (and only if) the Required Lenders  have agreed so to extend the Maturity Date then in effect hereunder as described in this  Section 2.16, then, effective as of such Extension Date, the Maturity Date of each  Extending Lender and each Additional Commitment Lender shall be extended to the date  falling one year after the Existing Termination Date (except that, if such date is not a  Business Day, such date shall be the next preceding Business Day) and each Additional  Commitment Lender shall thereupon become a “Lender” for all purposes of this  Agreement; provided, however, that there shall be no change in the Maturity Date of any  Non-Extending Lender that has not been replaced by an Additional Commitment Lender  (each a “Non-Replaced Lender”).  (f) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing,  the extension of the Maturity Date pursuant to this Section shall not be effective with  respect to any Lender unless:  (i) no Default or Event of Default shall have occurred and be continuing  on the date of such extension and after giving effect thereto;  (ii) the representations and warranties contained in Article V shall be  true and correct in all material respects (or, if any such representation or warranty  is qualified by materiality or Material Adverse Effect, shall be true and correct in  all respects) on and as of the date of such extension and after giving effect thereto,  as though made on and as of such date, except to the extent any such representation  or warranty is stated to relate solely to an earlier date, in which case such  representation or warranty shall have been true and correct in all material respects  (or, if any such representation or warranty is qualified by materiality or Material  Adverse Effect, shall have been true and correct in all respects) on and as of such  earlier date;  (iii) since the later of the date of the financial statements most recently  (as of the Notice Date for the applicable extension) available under Section 6.01(a)  or (b) or the date of the most recent (as of the Notice Date for the applicable  extension) current report on Form 8-K filed by the Borrower with the Securities  and Exchange Commission, no event, circumstance or development shall have  occurred that constitutes, has had or could reasonably be expected to constitute or  to have a Material Adverse Effect;  (iv) the Borrower shall have delivered to the Administrative Agent a  certificate of its chief financial officer or treasurer as to the satisfaction of  conditions (i)-(iii) immediately above on the date of the applicable extension; and  (v) on the Maturity Date of each Non-Replaced Lender, the Borrower  shall prepay any Revolving Loans outstanding on such date (and pay any additional  amounts required pursuant to Section 3.05) to the extent necessary to repay,  nonratably, the Loans of such Non-Replaced Lenders and the Commitment of such  Non-Replaced Lenders shall be terminated. The Applicable Percentages of the  remaining Lenders shall be revised as of such date.  





 






14235438v5 27112.00011       64     (g) Conflicting Provisions. This Section shall supersede any provisions in  Section 2.13 or Section 10.01 to the contrary.  2.17 ESG Amendment. After the Effective Date, the Borrower, in consultation with the  Sustainability Coordinator, shall be entitled to establish specified key performance indicators  (“Key Performance Indicators”) with respect to certain Environmental, Social and Governance  (“ESG”) targets of the Borrower and its Subsidiaries. The Sustainability Coordinator and the  Borrower may amend this Agreement (such amendment, the “ESG Amendment”) solely for the  purpose of incorporating the Key Performance Indicators and other related provisions (the “ESG  Pricing Provisions”) into this Agreement, and any such amendment shall become effective upon  the consent of the Required Lenders, the Borrower and the Sustainability Coordinator. Upon  effectiveness of any such ESG Amendment, based on the Borrower’s performance against the Key  Performance Indicators, certain adjustments to the Applicable Rate for the Facility Fee, Letter of  Credit commission, Base Rate Loans and Eurodollar Rate Loans may be made; provided that the  amount of any such adjustments made pursuant to an ESG Amendment shall not result in a  decrease of more than (a) 1.00 basis point in the Applicable Rate for the Facility Fee and/or (b)  4.00 basis points in the Applicable Rate for Base Rate Loans, Applicable Rate for Eurodollar Rate  Loans or Applicable Rate for the Letter of Credit commission, in each case, determined based  upon the Debt Ratings established or deemed to have been established by Moody’s and S&P on  the effective date of the ESG Amendment, provided that in no event shall the Applicable Rate be  less than zero. The pricing adjustments pursuant to the Key Performance Indicators will require,  among other things, reporting and validation of the measurement of the Key Performance  Indicators in a manner that is aligned with the Sustainability Linked Loan Principles (as published  in May 2020 by the Loan Market Association, Asia Pacific Loan Market Association and Loan  Syndications & Trading Association) as agreed upon by the Borrower and the Sustainability  Coordinator (each acting reasonably). Following the effectiveness of the ESG Amendment, any  modification to the ESG Pricing Provisions which does not have the effect of reducing the  Applicable Rate for the Facility Fee, Letter of Credit commission, Base Rate Loans and Eurodollar  Rate Loans to a level not otherwise permitted by this paragraph shall be subject only to the consent  of the Required Lenders.  2.18 Sustainability Coordinator. The Sustainability Coordinator will (i) assist the  Borrower in determining the ESG Pricing Provisions in connection with the ESG Amendment and  (ii) assist the Borrower in preparing informational materials focused on ESG to be used in  connection with the ESG Amendment.  ARTICLE III    TAXES, YIELD PROTECTION AND ILLEGALITY  3.01 Taxes.  (a) Defined Terms.  For purposes of this Section 3.01, the term “Lender”  includes any L/C Issuer and the term “Applicable Law” includes FATCA.  (b) Payments Free of Taxes.  Any and all payments by or on account of any  obligation of any Loan Party under any Loan Document shall be made without deduction  or withholding for any Taxes, except as required by Applicable Law.  If any Applicable  





 






14235438v5 27112.00011       65     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 Loan Party shall be increased as  necessary so that, after such deduction or withholding has been made (including such  deductions and withholdings applicable to additional sums payable under this Section), the  applicable Recipient receives an amount equal to the sum it would have received had no  such deduction or withholding been made.  (c) Payment of Other Taxes by the Loan Parties.  The Loan Parties shall timely  pay to the relevant Governmental Authority in accordance with Applicable Law, or at the  option of the Administrative Agent timely reimburse it for the payment of, any Other  Taxes.  (d) Indemnification by the Loan Parties.  The Loan Parties shall jointly and  severally indemnify each Recipient, within ten (10) days after demand therefor, for the full  amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or  attributable to amounts payable under this Section) payable or paid by such Recipient or  required to be withheld or deducted from a payment to such Recipient and any reasonable  expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes  were correctly or legally imposed or asserted by the relevant Governmental Authority.  A  certificate as to the amount of such payment or liability delivered to the Borrower by a  Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its  own behalf or on behalf of a Recipient, shall be conclusive absent manifest error.  (e) Indemnification by the Lenders.  Each Lender shall severally indemnify the  Administrative Agent, within ten (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 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 10.06(d) relating to the maintenance of a  Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case,  that are payable or paid by the 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 Administrative Agent shall be conclusive absent manifest  error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any  and all amounts at any time owing to such Lender under any Loan Document or otherwise  payable by the Administrative Agent to the Lender from any other source against any  amount due to the Administrative Agent under this paragraph (e).  (f) Evidence of Payments.  As soon as practicable after any payment of Taxes  by any Loan Party to a Governmental Authority pursuant to this Section 3.01(f), such Loan  Party shall deliver to the Administrative Agent the original or a certified copy of a receipt  issued by such Governmental Authority evidencing such payment, a copy of the return  





 






14235438v5 27112.00011       66     reporting such payment or other evidence of such payment reasonably satisfactory to the  Administrative Agent.  (g) Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall  deliver to the Borrower and the Administrative Agent, at the time or times  reasonably requested by the Borrower or the Administrative Agent, such properly  completed and executed documentation reasonably requested by the Borrower or  the Administrative Agent as will permit such payments to be made without  withholding or at a reduced rate of withholding.  In addition, any Lender, if  reasonably requested by the Borrower or the Administrative Agent, shall deliver  such other documentation prescribed by Applicable Law or reasonably requested  by the Borrower or the Administrative Agent as will enable the Borrower or the  Administrative Agent to determine whether or not such Lender is subject to backup  withholding or information reporting requirements.  Notwithstanding anything to  the contrary in the preceding two sentences, the completion, execution and  submission of such documentation (other than such documentation set forth in  Section 3.01(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the  Lender’s reasonable judgment such completion, execution or submission would  subject such Lender to any material unreimbursed cost or expense or would  materially prejudice the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the  Borrower is a U.S. Person:  (A) any Lender that is a U.S. Person shall deliver to the Borrower  and the Administrative Agent on or prior to the date on which such Lender  becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent),  executed copies of IRS Form W-9 certifying that such Lender is exempt  from United States federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to the Borrower and the Administrative Agent (in such  number of copies as shall be requested by the recipient) on or prior to the  date on which such Foreign Lender becomes a Lender under this Agreement  (and from time to time thereafter upon the reasonable request of the  Borrower or the Administrative Agent), whichever of the following is  applicable:  (1) in the case of a Foreign Lender claiming the benefits  of an income tax treaty to which the United States is a party (x) with  respect to payments of interest under any Loan Document, executed  copies of IRS Form W-8BEN or W-8BEN-E establishing an  exemption from, or reduction of, United States federal withholding  Tax pursuant to the “interest” article of such tax treaty and (y) with  





 






14235438v5 27112.00011       67     respect to any other applicable payments under any Loan Document,  IRS Form W-8BEN or W-8BEN-E establishing an exemption from,  or reduction of, United States federal withholding Tax pursuant to  the “business profits” or “other income” article of such tax treaty;  (2) executed copies of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits  of the exemption for portfolio interest under Section 881(c) of the  Code, (x) a certificate substantially in the form of Exhibit I-1 to the  effect that such Foreign Lender is not a “bank” within the meaning  of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of  the Borrower within the meaning of Section 881(c)(3)(B) of the  Code, or a “controlled foreign corporation” described in  Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance  Certificate”) and (y) executed copies of IRS Form W-8BEN or W- 8BEN-E; or  (4) to the extent a Foreign Lender is not the beneficial  owner, executed copies of IRS Form W-8IMY, accompanied by IRS  Form W-8ECI, IRS Form W-8BEN 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 Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to the Borrower and the Administrative Agent (in such  number of copies as shall be requested by the recipient) on or prior to the  date on which such Foreign Lender becomes a Lender under this Agreement  (and from time to time thereafter upon the reasonable request of the  Borrower or the Administrative Agent), executed copies of any other form  prescribed by Applicable Law as a basis for claiming exemption from or a  reduction in United States federal withholding Tax, duly completed,  together with such supplementary documentation as may be prescribed by  Applicable Law to permit the Borrower or the Administrative Agent to  determine the withholding or deduction required to be made; and  (D) if a payment made to a Lender under any Loan Document  would be subject to United States federal withholding Tax imposed by  FATCA if such Lender were to fail to comply with the applicable reporting  requirements of FATCA (including those contained in Section 1471(b) or  1472(b) of the Code, as applicable), such Lender shall deliver to the  Borrower and the Administrative Agent at the time or times prescribed by  





 






14235438v5 27112.00011       68     law and at such time or times reasonably requested by the Borrower or the  Administrative Agent such documentation prescribed by Applicable Law  (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such  additional documentation reasonably requested by the Borrower or the  Administrative Agent as may be necessary for the Borrower and the  Administrative Agent to comply with their obligations under FATCA and  to determine that such Lender has complied with such Lender’s obligations  under FATCA or to determine the amount to deduct and withhold from such  payment.  Solely for purposes of this clause (D), “FATCA” shall include  any amendments made to FATCA after the date of this Agreement.  Each  Lender agrees that if any form or certification it previously delivered expires  or becomes obsolete or inaccurate in any respect, it shall update such form  or certification or promptly notify the Borrower and the Administrative  Agent in writing of its legal inability to do so.  (h) Treatment of Certain Refunds.  If any party determines, in its sole discretion  exercised in good faith, that it has received a refund of any Taxes as to which it has been  indemnified pursuant to this Section 3.01 (including by the payment of additional amounts  pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to  such refund (but only to the extent of indemnity payments made under this Section with  respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including  Taxes) of such indemnified party and without interest (other than any interest paid by the  relevant Governmental Authority with respect to such refund).  Such indemnifying party,  upon the request of such indemnified party, shall repay to such indemnified party the  amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other  charges imposed by the relevant Governmental Authority) in the event that such  indemnified party is required to repay such refund to such Governmental Authority.   Notwithstanding anything to the contrary in this paragraph (h), in no event will the  indemnified party be required to pay any amount to an indemnifying party pursuant to this  paragraph (h) the payment of which would place the indemnified party in a less favorable  net after-Tax position than the indemnified party would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or  otherwise imposed and the indemnification payments or additional amounts with respect  to such Tax had never been paid.  This paragraph shall not be construed to require any  indemnified party to make available its Tax returns (or any other information relating to its  Taxes that it deems confidential) to the indemnifying party or any other Person.  (i) Survival.  Each party’s obligations under this Section 3.01 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or  the replacement of, a Lender, the termination of the Commitments and the repayment,  satisfaction or discharge of all obligations under any Loan Document.  3.02 Illegality.  If any Lender determines that any Law has made it unlawful, or that any  Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending  Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates  based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions  on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London  





 






14235438v5 27112.00011       69     interbank market, then, on notice thereof by such Lender to the Borrower through the  Administrative Agent (which notice shall state in reasonable detail the reasons therefor together  with a statement that other borrowers with similar Eurodollar Rate Loans are being treated  similarly), any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert  Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the  Administrative Agent and the Borrower that the circumstances giving rise to such determination  no longer exist.  Upon receipt of such notice, the Borrower shall, upon demand from such Lender  (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate  Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if  such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or  immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.   Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the  amount so prepaid or converted.  3.03 Inability to Determine Rates.  (a) If in connection with any request for a Eurodollar Rate Loan or a conversion  to or continuation thereof, (i) the Administrative Agent determines that (A) Dollar deposits  are not being offered to banks in the London interbank market for the applicable amount  and Interest Period of such Eurodollar Rate Loan, or (B) adequate and reasonable means  do not exist for determining the Eurodollar Rate for any requested Interest Period with  respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed  Base Rate Loan (in each case with respect to this clause (i), “Impacted Loans”), or (ii) the  Administrative Agent or the Required Lenders determine that for any reason the Eurodollar  Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan  does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar  Rate Loan, the Administrative Agent will promptly so notify the Borrower and each  Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate  Loans shall be suspended, (to the extent of the affected Eurodollar Rate Loans or Interest  Periods), and (y) in the event of a determination described in the preceding sentence with  respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar  Rate component in determining the Base Rate shall be suspended, in each case until the  Administrative Agent (or, in the case of a determination by the Required Lenders described  in clause (ii) of Section 3.03(a), until the Administrative Agent upon instruction of the  Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may  revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar  Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or,  failing that, will be deemed to have converted such request into a request for a Borrowing  of Base Rate Loans in the amount specified therein.  (b) Notwithstanding the foregoing, if the Administrative Agent has made the  determination described in clause (i) of Section 3.03(a), the Administrative Agent, in  consultation with the Borrower and Required Lenders, may establish an alternative interest  rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with  respect to the Impacted Loans until (i) the Administrative Agent revokes the notice  delivered with respect to the Impacted Loans under clause (i) of the first sentence of Section  3.03(a), (ii) the Administrative Agent or the Required Lenders notify the Administrative  





 






14235438v5 27112.00011       70     Agent and the Borrower that such alternative interest rate does not adequately and fairly  reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender  determines that any Law has made it unlawful, or that any Governmental Authority has  asserted that it is unlawful, for such Lender or its applicable Lending Office to make,  maintain or fund Loans whose interest is determined by reference to such alternative rate  of interest or to determine or charge interest rates based upon such rate or any  Governmental Authority has imposed material restrictions on the authority of such Lender  to do any of the foregoing and provides the Administrative Agent and the Borrower written  notice thereof.  (c) Notwithstanding anything to the contrary herein or in any other Loan  Document:  (i) On March 5, 2021 the Financial Conduct Authority (“FCA”), the  regulatory supervisor of LIBOR’s administrator (“IBA”), announced in a public  statement the future cessation or loss of representativeness of overnight/Spot Next,  1-week, 1-month, 2-month, 3-month, 6-month and 12- month U.S. dollar LIBOR  tenor settings. On the earliest of (A) the date that all Available Tenors of U.S dollar  LIBOR have permanently or indefinitely ceased to be provided by IBA or have  been announced by the FCA pursuant to public statement or publication of  information to be no longer representative, (B) June 30, 2023 and (C) the Early  Opt-in Effective Date in respect of a SOFR Early Opt-in, if the then-current  Benchmark is LIBOR, the Benchmark Replacement will replace such Benchmark  for all purposes hereunder and under any Loan Document in respect of any setting  of such Benchmark on such day and all subsequent settings without any amendment  to, or further action or consent of any other party to this Agreement or any other  Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest  payments will be payable on a monthly basis.  (ii) (A) Upon (1) the occurrence of a Benchmark Transition Event or  (2) a determination by the Administrative Agent that neither of the alternatives  under clause (1) of the definition of Benchmark Replacement are available, the  Benchmark Replacement will replace the then-current Benchmark for all purposes  hereunder and under any Loan Document in respect of any Benchmark setting at or  after 5:00 p.m. 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 (and any such objection shall be conclusive and  binding absent manifest error); provided that solely in the event that the then- current Benchmark at the time of such Benchmark Transition Event is not a SOFR- based rate, the Benchmark Replacement therefor shall be determined in accordance  with clause (1) of the definition of Benchmark Replacement unless the  Administrative Agent determines that neither of such alternative rates is available.   (B) On the Early Opt-in Effective Date in respect of an Other  Rate Early Opt-in, the Benchmark Replacement will replace LIBOR for all  





 






14235438v5 27112.00011       71     purposes hereunder and under any Loan Document in respect of any setting  of such Benchmark on such day and all subsequent settings without any  amendment to, or further action or consent of any other party to this  Agreement or any other Loan Document.  (iii) At any time that the administrator of the then-current Benchmark  has permanently or indefinitely ceased to provide such Benchmark or such  Benchmark has been announced by the regulatory supervisor for the administrator  of such Benchmark pursuant to public statement or publication of information to  be no longer representative of the underlying market and economic reality that such  Benchmark is intended to measure and that representativeness will not be restored,  the Borrower may revoke any request for a borrowing of, conversion to or  continuation of Loans to be made, converted or continued that would bear interest  by reference to such Benchmark until the Borrower’s receipt of notice from the  Administrative Agent that a Benchmark Replacement has replaced such  Benchmark, and, failing that, the Borrower will be deemed to have converted any  such request into a request for a borrowing of or conversion to Base Rate Loans.  During the period referenced in the foregoing sentence, the component of Base Rate  based upon the Benchmark will not be used in any determination of Base Rate.  (iv) In connection with the implementation and administration of a  Benchmark Replacement, 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.  (v) The Administrative Agent will promptly notify the Borrower and  the Lenders of (A) the implementation of any Benchmark Replacement and (B) the  effectiveness of any Benchmark Replacement Conforming Changes. Any  determination, decision or election that may be made by the Administrative Agent  pursuant to this Section 3.03(c), including any determination with respect to a tenor,  rate or adjustment or of the occurrence or non-occurrence of an event, circumstance  or date and any decision to take or refrain from taking any action, will be conclusive  and binding absent manifest error and may be made in its  sole discretion and  without consent from any other party hereto, except, in each case, as expressly  required pursuant to this Section 3.03(c).  (vi) At any time (including in connection with the implementation of a  Benchmark Replacement), (A) if the then-current Benchmark is a term rate  (including Term SOFR or LIBOR), then the Administrative Agent may remove any  tenor of such Benchmark that is unavailable or non-representative for Benchmark  (including Benchmark Replacement) settings and (B) the Administrative Agent  may reinstate any such previously removed tenor for Benchmark (including  Benchmark Replacement) settings.  





 






14235438v5 27112.00011       72     3.04 Increased Costs; Reserves on Eurodollar Rate Loans.  (a) Increased Costs Generally.  If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit,  compulsory loan, insurance charge or similar requirement against assets of,  deposits with or for the account of, or advances, loans or other credit extended or  participated in by, any Lender (except any reserve requirement reflected in the  Eurodollar Rate) or any Fronting Bank;  (ii) subject any Recipient to any Taxes (other than (A) Indemnified  Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded  Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of  credit, commitments, or other obligations, or its deposits, reserves, other liabilities  or capital attributable thereto; or  (iii) impose on any Lender or any Fronting Bank or the London  interbank market any other condition, cost or expense (other than Taxes) affecting  this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of  Credit or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender, the  Fronting Bank or such other Recipient of making, converting to, continuing or maintaining  any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost  to such Lender, such Fronting Bank or such other Recipient of participating in, issuing or  maintaining any Letter of Credit (or of maintaining its obligation to participate in or to  issue any Letter of Credit), or to reduce the amount of any sum received or receivable by  such Lender, such Fronting Bank or such other Recipient hereunder (whether of principal,  interest or any other amount) then, upon written request of such Lender, such Fronting  Bank or other Recipient, the Borrower shall promptly pay to any such Lender, such  Fronting Bank or other Recipient, as the case may be, such additional amount or amounts  as will compensate such Lender, such Fronting Bank or other Recipient, as the case may  be, for such additional costs incurred or reduction suffered.  (b) Capital Requirements.  If any Lender or any Fronting Bank determines that  any Change in Law affecting such Lender or such Fronting Bank or any Lending Office of  such Lender or such Lender’s or such Fronting 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 such Fronting Bank’s capital or on the capital of such Lender’s or such  Fronting 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, or the Letters of Credit issued by such Fronting  Bank, to a level below that which such Lender or such Fronting Bank or such Lender’s or  such Fronting Bank’s holding company could have achieved but for such Change in Law  (taking into consideration such Lender’s or such Fronting Bank’s policies and the policies  of such Lender’s or such Fronting Bank’s holding company with respect to capital  adequacy and liquidity), then from time to time upon written request of such Lender or  such Fronting Bank the Borrower shall promptly pay to such Lender or such Fronting Bank,  





 






14235438v5 27112.00011       73     as the case may be, such additional amount or amounts as will compensate such Lender or  such Fronting Bank or such Lender’s or such Fronting Bank’s holding company for any  such reduction suffered.  (c) Certificates for Reimbursement.  A certificate of a Lender or any Fronting  Bank setting forth the amount or amounts necessary to compensate such Lender or such  Fronting Bank or its holding company, as the case may be, as specified in subsection (a)  or (b) of this Section and delivered to the Loan Parties shall (i) include a written explanation  of such additional cost or reduction and a statement that such costs affect other borrowers  of such Lender or such Fronting Bank who are similarly situated and (ii) be conclusive  absent manifest error.  The Loan Parties shall pay such Lender or such Fronting Bank, as  the case may be, the amount shown as due on any such certificate within ten (10) days after  receipt thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender or any  Fronting Bank to demand compensation pursuant to the foregoing provisions of this  Section shall not constitute a waiver of such Lender’s or such Fronting Bank’s right to  demand such compensation, provided that the Loan Parties shall not be required to  compensate a Lender or such Fronting Bank pursuant to the foregoing provisions of this  Section for any increased costs incurred or reductions suffered more than nine months prior  to the date that such Lender or such Fronting Bank, as the case may be, notifies the Loan  Parties of the Change in Law giving rise to such increased costs or reductions and of such  Lender’s or such Fronting Bank’s intention to claim compensation therefor (except that, if  the Change in Law giving rise to such increased costs or reductions is retroactive, then the  nine-month period referred to above shall be extended to include the period of retroactive  effect thereof).  (e) Reserves on Eurodollar Rate Loans.  The Borrower shall pay to each  Lender, as long as such Lender shall be required to maintain reserves with respect to  liabilities or assets consisting of or including Eurocurrency funds or deposits (currently  known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of  each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan  by such Lender (as determined by such Lender in good faith, which determination shall be  conclusive), which shall be due and payable on each date on which interest is payable on  such Loan, provided the Borrower shall have received at least 10 days’ prior notice (with  a copy to the Administrative Agent) of such additional interest from such Lender.  If a  Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such  additional interest shall be due and payable 10 days from receipt of such notice.  3.05 Compensation for Losses.  Upon demand of any Lender (with a copy to the  Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender  for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:  (a) any continuation, conversion, payment or prepayment of any Loan other  than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan  (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);  





 






14235438v5 27112.00011       74     (b) any failure by the Borrower (for a reason other than the failure of such  Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base  Rate Loan on the date or in the amount notified by the Borrower; or  (c) any assignment of a Eurodollar Rate Loan on a day other than the last day  of the Interest Period therefor as a result of a request by the Borrower pursuant to  Section 10.13;  including any loss of anticipated profits and any loss or expense arising from the liquidation or  reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the  deposits from which such funds were obtained.  The Borrower shall also pay any customary  administrative fees charged by such Lender in connection with the foregoing.  For purposes of calculating amounts payable by the Borrower to the Lenders under this  Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it  at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London  interbank Eurodollar market for a comparable amount and for a comparable period, whether or not  such Eurodollar Rate Loan was in fact so funded.  3.06 Mitigation Obligations; Replacement of Lenders.  (a) Designation of a Different Lending Office.  If any Lender requests  compensation under Section 3.04, or any Loan Party is required to pay any additional  amount to any Lender or any Governmental Authority for the account of any Lender  pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such  Lender 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 (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or  3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to  Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any  unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.   The Loan Parties hereby agree to pay all reasonable costs and expenses incurred by any  Lender in connection with any such designation or assignment.  (b) Replacement of Lenders.  If (i) any Lender requests compensation under  Section 3.04, (ii) any Loan Party is required to pay any additional amount to any Lender  or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or  (iii) any Lender that was an NAIC Approved Bank on the date it became a party to this  Agreement ceases to be an NAIC Approved Bank and has failed to obtain a Fronting Bank  as contemplated by Section 2.03(o), the Borrower may replace such Lender in accordance  with Section 10.13, in any case upon notice to such Lender and the Administrative Agent.  3.07 Survival.  All of the Loan Parties’ obligations under this Article III shall survive  termination of the Commitments and repayment of all other Obligations hereunder.  





 






14235438v5 27112.00011       75     ARTICLE IV    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  4.01 Conditions of Effective Date.  This Agreement shall become effective on the date  that each of the following conditions precedent shall have been satisfied (or waived in accordance  with Section 10.01):  (a) The Administrative Agent’s receipt of the following, each of which shall be  originals, telecopies, facsimile, “.pdf” or other electronically transmitted copies (followed  promptly by originals) unless otherwise specified, each properly executed by a Responsible  Officer of the signing Loan Party, each dated the Effective Date (or, in the case of  certificates of governmental officials, a recent date before the Effective Date) and each in  form and substance satisfactory to the Administrative Agent and each of the Lenders:  (i) executed counterparts of this Agreement, in such number as the  Administrative Agent shall request;  (ii) a Revolving Note executed by the Borrower in favor of each Lender  requesting a Revolving Note;  (iii) such certificates of resolutions or other action, incumbency  certificates and/or other certificates of Responsible Officers of each Loan Party as  the Administrative Agent may require evidencing the identity, authority and  capacity of each Responsible Officer thereof authorized to act as a Responsible  Officer in connection with this Agreement and the other Loan Documents to which  such Loan Party is a party;  (iv) such documents and certifications as the Administrative Agent may  reasonably require to evidence that each Loan Party is duly organized or formed,  and that each Loan Party is validly existing, in good standing and qualified to  engage in business in such jurisdictions as the Administrative Agent may  reasonably request;  (v) (A) a favorable opinion of McAfee & Taft, outside counsel to the  Borrower, (B) a favorable opinion of R. Brian Mitchell, executive vice president  and general counsel of the Borrower, (C) a favorable opinion of Appleby  (Bermuda) Limited, special Bermuda counsel to TMK and (D) a favorable opinion  of Robinson, Bradshaw & Hinson, P.A. with respect to the enforceability of this  Agreement and the Notes under the laws of the State of New York, each addressed  to the Administrative Agent and each Lender, as to such matters concerning the  Loan Parties and the Loan Documents as the Administrative Agent or the Required  Lenders may reasonably request;  (vi) a certificate of a Responsible Officer or Secretary of each Loan Party  either (A) attaching copies of all consents, licenses and regulatory or other  approvals required in connection with the execution, delivery and performance by  such Loan Party and the validity against such Loan Party of the Loan Documents  





 






14235438v5 27112.00011       76     to which it is a party, and such consents, licenses and approvals shall be in full force  and effect, or (B) stating that no such consents, licenses or approvals are so  required;  (vii) a certificate signed by a Responsible Officer of the Borrower  certifying (A) that the conditions specified in Section 4.01(d) and (e) and  Sections 4.02(b) and (c) have been satisfied, (B) that there has been no event or  circumstance since the date of the Audited Financial Statements that has had or  could be reasonably expected to have, either individually or in the aggregate, a  Material Adverse Effect, and (C) the current Debt Ratings.  (viii) evidence that prior to or concurrently with the Effective Date (A) all  accrued and unpaid interest and fees outstanding under the Existing Credit  Agreement have been paid in full and (B) all outstanding letters of credit issued  under the Existing Credit Agreement are being (i) surrendered for cancellation or  (ii) amended and/or continued, as applicable, pursuant to Section 2.03(n) hereof;  (ix) a duly completed compliance certificate as of June 30, 2021 in form  satisfactory to the Administrative Agent, signed by a Responsible Officer of the  Borrower and evidencing compliance as of such date with Section 7.07 hereof; and  (x) except as the Administrative Agent and the Borrower shall  otherwise agree, the Administrative Agent shall have received evidence (which the  Borrower shall deliver) in the form of the most current “Bank List” of banks  approved by the NAIC, that each Lender is an NAIC Approved Bank; and  (xi) such other assurances, certificates, documents, consents or opinions  as the Administrative Agent, the Swing Line Lender, the L/C Administrator, or the  Required Lenders reasonably may require.  (b) Any fees required to be paid on or before the Effective Date shall have been  paid.  (c) Unless waived by the Administrative Agent, the Borrower shall have paid  all fees, charges and disbursements of counsel to the Administrative Agent to the extent  invoiced prior to or on the Effective Date.  (d) There shall not have occurred a material adverse change (i) in the business,  assets, properties, liabilities (actual or contingent), operations, conditions (financial or  otherwise) or prospects of either of the Loan Parties, or the Borrower and its Subsidiaries,  taken as a whole, since December 31, 2020 or (ii) in the facts and information regarding  such entities as represented by the Borrower or any of its Subsidiaries, or any  representatives of any of them, to date.  (e) The absence of any action, suit, investigation or proceeding pending or, to  the knowledge of the Borrower or any of its Subsidiaries, threatened, in any court or before  any arbitrator or governmental authority that could reasonably be expected to have a  Material Adverse Effect.  





 






14235438v5 27112.00011       77     (f) Each Several Letter of Credit described on Schedule 2.03 shall have been  (or shall substantially contemporaneously be) amended to remove, as applicable, the  Existing Lenders as issuers thereof and to reflect as the issuers thereof the Lenders in  accordance with their Applicable Percentages as reflected on Schedule 2.01 hereto and  Bank of America as the L/C Administrator (or shall have been cancelled without a drawing  thereon).  (g) (i) Upon the reasonable request of any Lender made at least 5 days prior to  the Effective Date, each Loan Party shall have provided to such Lender, and such Lender  shall be reasonably satisfied with, the documentation and other information so requested  in connection with applicable “know your customer” and anti-money-laundering rules and  regulations, including, without limitation, the PATRIOT Act, in each case at least 3 days  prior to the Effective Date and (ii) at least 5 days prior to the Effective Date, if any Loan  Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it  shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification.  Without limiting the generality of the provisions of Section 9.04, for purposes of  determining compliance with the conditions specified in this Section 4.01, each Lender that has  signed this Agreement shall be deemed to have consented to, approved or accepted or to be  satisfied with, each document or other matter required thereunder to be consented to or approved  by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received  notice from such Lender prior to the proposed Effective Date specifying its objection thereto.  4.02 Conditions to all Credit Extensions.  The obligation of each Lender to honor any  Request for Credit Extension (other than a Loan Notice requesting only a conversion of Revolving  Loans to the other Type or a continuation of Eurodollar Rate Loans) is subject to the following  conditions precedent:  (a) The Effective Date shall have occurred.  (b) The representations and warranties of the Borrower and each other Loan  Party contained in Article V (other than the representation in Section 5.05(d) and Section  5.06 solely with respect to a Revolving Borrowing or Swing Line Borrowing occurring  after the Effective Date) or any other Loan Document, shall be true and correct on and as  of the date of such Credit Extension, except to the extent that such representations and  warranties specifically refer to an earlier date, in which case they shall be true and correct  as of such earlier date, and except that for purposes of this Section 4.02, the representations  and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to  refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively,  of Section 6.01.  (c) No Default shall exist, or would result from such proposed Credit Extension  or from the application of the proceeds thereof.  (d) The Administrative Agent and, if applicable, the Applicable Issuing Party  or the Swing Line Lender shall have received a Request for Credit Extension in accordance  with the requirements hereof.  





 






14235438v5 27112.00011       78     (e) If a Secured Letter of Credit is being requested, (i) the Borrower shall have  executed a Security Agreement and Control Agreement and the Administrative Agent shall  have received such resolutions, certificates and opinions with respect thereto as the  Administrative Agent may reasonably request and (ii) the Administrative Agent shall have  received a Borrowing Base Certificate calculated as of the most recent Business Day in  accordance with the requirements hereof and demonstrating compliance with Section 6.13.  Each Request for Credit Extension (other than a Loan Notice requesting only a conversion  of Revolving Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by  any Borrower shall be deemed to be a representation and warranty that the conditions specified in  Sections 4.02(b) and (c) have been satisfied on and as of the date of the applicable Credit  Extension.  ARTICLE V    REPRESENTATIONS AND WARRANTIES  The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:  5.01 Existence, Qualification and Power; Compliance with Laws.  Each Loan Party  and each of the Significant Subsidiaries (a) is duly organized or formed, validly existing and, as  applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization,  (b) has all requisite power and authority and all requisite governmental licenses, authorizations,  consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute,  deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly  qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction  where its ownership, lease or operation of properties or the conduct of its business requires such  qualification or license, and (d) is in compliance with all Laws; except in each case referred to in  clause (b)(i), (c) or (d), to the extent that failure to do so could not reasonably be expected to have  a Material Adverse Effect. Neither Loan Party is an Affected Financial Institution.   5.02 Authorization; No Contravention.  The execution, delivery and performance by  each Loan Party of each Loan Document to which such Person is party, have been duly authorized  by all necessary corporate or other organizational action, and do not and will not (a) contravene  the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach  or contravention of, or the creation of any Lien under, or require any payment to be made under  (i) any Contractual Obligation to which such Person is a party or affecting such Person or the  properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of  any Governmental Authority or any arbitral award to which such Person or its property is subject;  or (c) violate any Applicable Law.    5.03 Governmental Authorization; Other Consents.  No approval, consent,  exemption, authorization, or other action by, or notice to, or filing with, any Governmental  Authority or any other Person is necessary or required in connection with the execution, delivery  or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan  Document.  





 






14235438v5 27112.00011       79     5.04 Binding Effect.  This Agreement has been, and each other Loan Document, when  delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party  thereto.  This Agreement constitutes, and each other Loan Document when so delivered will  constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan  Party that is party thereto in accordance with its terms.  5.05 Financial Statements; No Material Adverse Effect.  (a) The Audited Financial Statements (i) were prepared in accordance with  GAAP consistently applied throughout the period covered thereby, except as otherwise  expressly noted therein; (ii) fairly present the financial condition of the Borrower and its  Subsidiaries as of the date thereof and their results of operations for the period covered  thereby in accordance with GAAP consistently applied throughout the period covered  thereby, except as otherwise expressly noted therein; and (iii) show all material  indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries  as of the date thereof, including liabilities for taxes, material commitments and  Indebtedness, in each case under this clause (iii), to the extent required to be reflected  thereon pursuant to GAAP.  (b) The unaudited consolidated balance sheet of the Borrower and its  Subsidiaries dated June 30, 2021, and the related consolidated statements of income or  operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date  (i) were prepared in accordance with GAAP consistently applied throughout the period  covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the  financial condition of the Borrower and its Subsidiaries as of the date thereof and their  results of operations for the period covered thereby, subject, in the case of clauses (i) and  (ii), to the absence of footnotes and to normal year-end audit adjustments.  (c) Schedule 5.05 sets forth all material indebtedness and other liabilities, direct  or contingent, of the Borrower and its consolidated Subsidiaries not disclosed on the most  recent financial statements referred to in either clauses (a) or (b), as applicable, of this  Section 5.05, including liabilities for taxes, material commitments and Indebtedness.  (d) Since the date of the Audited Financial Statements, there has been no event  or circumstance, either individually or in the aggregate, that has had or could reasonably  be expected to have a Material Adverse Effect.  5.06 Litigation.  Except as set forth on Schedule 5.06, there are no actions, suits,  proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened or  contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against  the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport  to affect or pertain to this Agreement or any other Loan Document, or any of the transactions  contemplated hereby, or (b) either individually or in the aggregate, if determined adversely, could  reasonably be expected to have a Material Adverse Effect.  5.07 No Default.  No Default has occurred and is continuing or would result from the  consummation of the transactions contemplated by this Agreement or any other Loan Document.  





 






14235438v5 27112.00011       80     5.08 Ownership of Property; Liens.  Each of the Borrower and each Subsidiary has  good title to, or valid leasehold interests in, all real property necessary or used in the ordinary  conduct of its business, except for such defects in title as could not, individually or in the aggregate,  reasonably be expected to have a Material Adverse Effect.  The property of the Borrower and its  Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.  5.09 Insurance.  The properties of the Borrower and its Subsidiaries are insured with  financially sound and reputable insurance companies not Affiliates of the Borrower, in such  amounts, with such deductibles and covering such risks as are customarily carried by companies  engaged in similar businesses and owning similar properties in localities where the Borrower or  the applicable Subsidiary operates, including self-insurance for certain portions of workers  compensation to the extent customary.  5.10 Taxes.  The Borrower and its Subsidiaries have filed all Federal, state and other  material tax returns and reports required to be filed, and have paid all Federal, state and other  material taxes, assessments, fees and other governmental charges levied or imposed upon them or  their properties, income or assets otherwise due and payable, except those which are being  contested in good faith by appropriate proceedings diligently conducted and for which adequate  reserves have been provided in accordance with GAAP.  There is no proposed tax assessment  against the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.   Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement with any  Person other than another Loan Party or a Subsidiary thereof.  5.11 ERISA Compliance.  (a) Each Plan is in compliance in all material respects with the applicable  provisions of ERISA, the Code and other Federal or state Laws.  Each Plan that is intended  to qualify under Section 401(a) of the Code has received a favorable determination letter  or opinion letter from the IRS or an application for such a letter is currently being processed  by the IRS with respect thereto and, to the best knowledge of the Borrower, nothing has  occurred which would prevent, or cause the loss of, such qualification.  The Borrower and  each ERISA Affiliate have made all required contributions to each Plan subject to  Section 412 of the Code, and no application for a funding waiver or an extension of any  amortization period pursuant to Section 412, 430 or 431 of the Code has been made with  respect to any Plan.  (b) There are no pending or, to the best knowledge of the Borrower, threatened  claims, actions or lawsuits, or action by any Governmental Authority, with respect to any  Plan that could be reasonably be expected to have a Material Adverse Effect.  There has  been no prohibited transaction or violation of the fiduciary responsibility rules with respect  to any Plan that has resulted or could reasonably be expected to result in a Material Adverse  Effect.  (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no  Loan Party or any ERISA Affiliate has failed to meet the applicable requirements under  the Pension Funding Rules with respect to each Pension Plan, and no waiver of the  minimum funding standards under the Pension Funding Rules has been applied for or  obtained; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably  





 






14235438v5 27112.00011       81     expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan  (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither  the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any  liability (and no event has occurred which, with the giving of notice under Section 4219 of  ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect  to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has  engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.  5.12 Subsidiaries; Equity Interests.  As of the Effective Date, the Borrower has no  Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.12, and all of the  outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non- assessable and are owned directly or indirectly by the Borrower in the amounts specified on Part (a)  of Schedule 5.12 free and clear of all Liens.  As of the Effective Date, the Borrower has no equity  investments in any other corporation or entity in excess of 5% of the Equity Interests of such  corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.12.  All of  the outstanding Equity Interests in the Borrower have been validly issued and are fully paid and  non-assessable.  As of the Effective Date, TMK does not have any Subsidiaries.  5.13 Margin Regulations; Investment Company Act.  (a) No Loan Party is engaged and will not engage, principally or as one of its  important activities, in the business of purchasing or carrying margin stock (within the  meaning of Regulation U issued by the FRB), or extending credit for the purpose of  purchasing or carrying margin stock.  Following the application of the proceeds of each  Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the  assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated  basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction  contained in any agreement or instrument between any Loan Party and any Lender or any  Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e)  will be margin stock.  (b) None of the Borrower, any Person Controlling the Borrower, or any  Subsidiary is or is required to be registered as an “investment company” under the  Investment Company Act of 1940.  5.14 Disclosure.  The Borrower has disclosed to the Administrative Agent and the  Lenders all agreements, instruments and corporate or other restrictions to which it or any of its  Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate,  could reasonably be expected to result in a Material Adverse Effect.  No report, financial statement,  certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan  Party to the Administrative Agent or any Lender in connection with the transactions contemplated  hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan  Document (in each case, as modified or supplemented by other information so furnished) contains  any material misstatement of fact or omits to state any material fact necessary to make the  statements therein, in the light of the circumstances under which they were made, not misleading;  provided that, with respect to projected financial information, the Borrower represents only that  such information was prepared in good faith based upon assumptions believed to be reasonable at  





 






14235438v5 27112.00011       82     the time. As of the Effective Date, all of the information included in any Beneficial Ownership  Certification, if applicable, is true and correct in all respects.  5.15 Compliance with Laws.  Each of the Borrower and each Subsidiary is in  compliance in all material respects with the requirements of all Applicable Laws and all orders,  writs, injunctions and decrees applicable to it or to its properties, except in such instances in which  (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith  by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either  individually or in the aggregate, could not reasonably be expected to have a Material Adverse  Effect.  5.16 Insurance Licenses.  As of the Effective Date, Schedule 5.16 lists all of the  jurisdictions in which any Significant Insurance Subsidiary holds active Licenses and is authorized  to transact insurance business.  No License of any Significant Subsidiary in any jurisdiction is the  subject of a proceeding for suspension or revocation, there is no sustainable basis for such  suspension or revocation, and to each Loan Party’s best knowledge, no such suspension or  revocation has been threatened by any Governmental Authority.  Schedule 5.16 also indicates the  type or types of insurance in which each such Insurance Subsidiary is permitted to engage with  respect to each License therein listed as of the Effective Date.  As of the Effective Date, none of  the Insurance Subsidiaries transacts any insurance business, directly or indirectly, in any state other  than those enumerated in Schedule 5.16.  5.17 First Priority Interest.  The Administrative Agent, for the benefit of itself, the  Fronting Banks, the L/C Issuers, the L/C Administrator and the Lenders, has a first priority  perfected security interest in the Collateral, if any, pledged by each Loan Party pursuant to this  Agreement (if ever) or any applicable Security Agreement.  5.18 OFAC; Anti-Corruptions Laws.  (a) No Loan Party, nor any of its Subsidiaries, nor, to the knowledge of such  Loan Party and its Subsidiaries, any director, officer, employee, agent, affiliate or  representative thereof, is an individual or entity that is, or is owned or controlled by one or  more individuals or entities that are (a) currently the subject or target of any Sanctions,  (b) included on OFAC’s List of Specially Designated Nationals or HMT’s Consolidated  List of Financial Sanctions Targets, or any similar list enforced by any other relevant  sanctions authority or (c) located, organized or resident in a Designated Jurisdiction.  Each  Loan Party and its Subsidiaries have conducted their businesses in compliance in all  material respects with all applicable Sanctions and have instituted and maintained policies  and procedures designed to promote and achieve compliance with such Sanctions.  (b) Each Loan Party and its Subsidiaries have conducted their businesses in  compliance in all material respects with the United States Foreign Corrupt Practices Act of  1977, the UK Bribery Act 2010, and other applicable anti-corruption legislation in other  jurisdictions and have instituted and maintained policies and procedures designed to  promote and achieve compliance with such laws.  5.19 Covered Entities.  No Loan Party is a Covered Entity.  





 






14235438v5 27112.00011       83     ARTICLE VI    AFFIRMATIVE COVENANTS  So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation  hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the  Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and  6.03) cause each Subsidiary to:  6.01 Financial Statements.  Deliver to the Administrative Agent and each Lender, in  form and detail satisfactory to the Administrative Agent and the Required Lenders:  (a) as soon as available, but in any event within ninety (90) days after the end  of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its  Subsidiaries as at the end of such fiscal year, and the related consolidated statements of  income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth  in each case in comparative form the figures for the previous fiscal year, all in reasonable  detail and prepared in accordance with GAAP, such consolidated statements to be audited  and accompanied by a report and opinion of an independent certified public accountant of  nationally recognized standing reasonably acceptable to the Required Lenders, which  report and opinion shall be prepared in accordance with generally accepted auditing  standards and shall not be subject to any “going concern” or like qualification or exception  or any qualification or exception as to the scope of such audit; and  (b) as soon as available, but in any event within forty-five (45) days after the  end of each of the first three fiscal quarters of each fiscal year of the Borrower, a  consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal  quarter, and the related consolidated statements of income or operations, shareholders’  equity and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal  year then ended, setting forth in each case in comparative form the figures for the  corresponding fiscal quarter of the previous fiscal year and the corresponding portion of  the previous fiscal year, all in reasonable detail, such consolidated statements to be certified  by a Responsible Officer of the Borrower as fairly presenting the financial condition,  results of operations, shareholders’ equity and cash flows of the Borrower and its  Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments  and the absence of footnotes.  As to any information contained in materials furnished pursuant to Section 6.02(c), the  Borrower shall not be separately required to furnish such information under clause (a) or (b) above,  but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the  information and materials described in clauses (a) and (b) above at the times specified therein.  6.02 Certificates; Other Information.  Deliver to the Administrative Agent and each  Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:  (a) concurrently with the delivery of the financial statements referred to in  Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible  Officer of the Borrower;  





 






14235438v5 27112.00011       84     (b) promptly after any request by the Administrative Agent or any Lender,  copies of any detailed audit reports, substantive management letters or substantive  recommendations submitted to the board of directors (or the audit committee of the board  of directors) of the Borrower by independent accountants in connection with the accounts  or books of the Borrower or any Subsidiary, or any audit of any of them;  (c) promptly after the same are publicly available, copies of each annual report,  proxy or financial statement or other report or communication sent to the stockholders of  the Borrower, and copies of all annual, regular, periodic and special reports and registration  statements which the Borrower may file or be required to file with the SEC under  Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to  be delivered to the Administrative Agent pursuant hereto;  (d) promptly after the furnishing thereof, copies of any statement or report  furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof  pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise  required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this  Section 6.02;  (e) promptly, and in any event within five (5) Business Days after receipt  thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other  correspondence received from the SEC (or any other Governmental Authority) concerning  any material investigation by such agency regarding financial or other operational results  of any Loan Party or any Subsidiary thereof;  (f) within (i) ninety (90) days after the close of each fiscal year of each  Significant Insurance Subsidiary, copies of the Annual Statement of each of the Significant  Insurance Subsidiaries, as certified by the president, secretary and treasurer of and the  actuary for each such Significant Insurance Subsidiary and prepared on the NAIC annual  statement blanks (or such other form as shall be required by the jurisdiction of  incorporation of each such Significant Insurance Subsidiary), all such statements to be  prepared in accordance with SAP consistently applied throughout the periods reflected  therein and (ii)  one hundred eighty (180) days after the close of each fiscal year of each  Significant Insurance Subsidiary, copies of the certification by independent certified public  accountants reasonably acceptable to the Administrative Agent if so required by any  Governmental Authority with respect to such Annual Statements;  (g) within sixty (60) days after the close of each fiscal quarter of each  Significant Insurance Subsidiary, copies of the Quarterly Statement of each of the  Significant Insurance Subsidiaries, as certified by the president, secretary and treasurer of  and the actuary for each such Significant Insurance Subsidiary and prepared on the NAIC  quarterly statement blanks (or such other form as shall be required by the jurisdiction of  incorporation of each such Insurance Subsidiary), all such statements to be prepared in  accordance with SAP consistently applied throughout the periods reflected therein;  (h) promptly upon any Loan Party’s receipt thereof, copies of reports or  valuations prepared by any Governmental Authority or actuary in respect of any action or  





 






14235438v5 27112.00011       85     event which has resulted in the reduction by 5% or more in the capital and surplus of any  Insurance Subsidiary;  (i) promptly and in any event within ten (10) days after learning thereof,  notification of any decrease after the date hereof in the rating given by A.M. Best & Co. in  respect of any Insurance Subsidiary;  (j) with each Letter of Credit Application for a Secured Letter of Credit and  within ten (10) Business Days after the end of each calendar month when a Secured Letter  of Credit is in place, a Borrowing Base Certificate executed by a Responsible Officer. For  purposes of such report and of completing the Borrowing Base Certificate required under  this Section 6.02(j), Eligible Collateral shall be valued based on its Fair Market Value as  at the last Business Day of the calendar month for which such report or Borrowing Base  Certificate is being delivered;  (k) promptly, at the reasonable request of the Administrative Agent at any time  any Secured Letter of Credit is outstanding, a Borrowing Base Certificate for any given  Business Day executed by a Responsible Officer of the Borrower;   (l) promptly following any request therefor, provide information and  documentation reasonably requested by the Administrative Agent or any Lender for  purposes of compliance with applicable “know your customer” and anti-money-laundering  rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial  Ownership Regulation; and  (m) promptly, such additional information regarding the business, financial or  corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the  Loan Documents, as the Administrative Agent or any Lender may from time to time  reasonably request.  Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c)  (to the extent any such documents are included in materials otherwise filed with the SEC) may be  delivered electronically and if so delivered, shall be deemed to have been delivered on the date  (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s  website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such  documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which  each Lender and the Administrative Agent have access (whether a commercial, third-party website  or whether sponsored by the Administrative Agent); provided that:  (i) the Borrower shall deliver  paper copies of such documents to the Administrative Agent or any Lender that requests the  Borrower to deliver such paper copies until a written request to cease delivering paper copies is  given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the  Administrative Agent and each Lender (by electronic mail) of the posting of any such documents  and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies)  of such documents.  The Administrative Agent shall have no 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 Borrower with any such request by a Lender for delivery, and each  Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such  documents.  





 






14235438v5 27112.00011       86     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint  Arrangers will make available to the Lenders and Fronting Banks materials and/or information  provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by  posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar  electronic transmission system (the “Platform”) and (b) certain of the Lenders may be “public- side” Lenders (i.e., Lenders that do not wish to receive material non-public information with  respect to the Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees  that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and  conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall  appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the  Borrower shall be deemed to have authorized the Administrative Agent, the Joint Arrangers, the  L/C Administrator and the Lenders to treat such Borrower Materials as not containing any material  non-public information (although it may be sensitive and proprietary) with respect to the Borrower  or its securities for purposes of United States Federal and state securities laws (provided, however,  that to the extent such Borrower Materials constitute Information, they shall be treated as set forth  in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made  available through a portion of the Platform designated “Public Investor;” and (z) the  Administrative Agent and the Joint Arrangers shall be entitled to treat any Borrower Materials that  are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not  designated “Public Investor.”  6.03 Notices.  Promptly notify the Administrative Agent and each Lender:  (a) of the occurrence of any Default;  (b) of any matter, including (i) breach or non-performance of, or any default  under, a Contractual Obligation of the Borrower or any Subsidiary, (ii) any dispute,  litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary  and any Governmental Authority, including any notice from any Governmental Authority  of the expiration without renewal, revocation or suspension of, or the institution of any  proceedings to revoke or suspend, any License now or hereafter held by any Insurance  Subsidiary which is required to conduct insurance business in compliance with all  Applicable Laws, (iii) any judicial or administrative order limiting or controlling the  insurance business of any Insurance Subsidiary (and not the insurance industry generally),  (iv) any notice from any Governmental Authority of the institution of any disciplinary  proceedings against or in respect of any Insurance Subsidiary, or the issuance of any order,  the taking of any action or any request for an extraordinary audit for cause by any  Governmental Authority or (v) the commencement of, or any material development in, any  litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to  any applicable Environmental Laws, in each case, that, individually or collectively, has  resulted or could reasonably be expected to result in a Material Adverse Effect;  (c) of the occurrence of any ERISA Event;  (d) of any material change in accounting policies and practices by the Borrower  or any Subsidiary; and  





 






14235438v5 27112.00011       87     (e) of any announcement by Moody’s or S&P of any change or possible change  in a Debt Rating;  Each notice pursuant to this Section (other than Section 6.03(e)) shall be accompanied by  a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred  to therein and stating what action the Borrower has taken and proposes to take with respect thereto.   Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of  this Agreement and any other Loan Document that have been breached.  6.04 Payment of Taxes.  Pay and discharge as the same shall become due and payable,  all Tax liabilities, assessments and governmental charges or levies upon it or its properties or  assets, unless the same are being contested in good faith by appropriate proceedings diligently  conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower  or such Subsidiary.  6.05 Preservation of Existence, Etc.  (a) Preserve, renew and maintain in full force and  effect its legal existence and good standing under the Laws of the jurisdiction of its organization  except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain  all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct  of its business, except to the extent that failure to do so could not reasonably be expected to have  a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade  names and service marks, the non-preservation of which could reasonably be expected to have a  Material Adverse Effect.  6.06 Maintenance of Properties.  (a) Maintain, preserve and protect all of its material  properties and equipment necessary in the operation of its business in good working order and  condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals  and replacements thereof except where the failure to do so could not reasonably be expected to  have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the  operation and maintenance of its facilities.  6.07 Maintenance of Insurance.  Maintain with financially sound and reputable  insurance companies not Affiliates of the Borrower, insurance with respect to its Property and  business against loss or damage of the kinds customarily insured against by Persons engaged in  the same or similar business, of such types and in such amounts as are customarily carried under  similar circumstances by such other Persons.  6.08 Compliance with Laws.  Comply in all material respects with the requirements of  all Applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its business  or property, except in such instances in which (a) such requirement of Law or order, writ,  injunction or decree is being contested in good faith by appropriate proceedings diligently  conducted; or (b) the failure to comply therewith could not reasonably be expected to have a  Material Adverse Effect.  6.09 Books and Records.  (a) Maintain proper books of record and account, in which  full, true and correct entries in conformity with GAAP or SAP, as the case may be, consistently  applied shall be made of all financial transactions and matters involving the assets and business of  the Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and  





 






14235438v5 27112.00011       88     account in material conformity with all applicable requirements of any Governmental Authority  having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.  6.10 Inspection Rights.  Permit representatives and independent contractors of the  Administrative Agent and each Lender to visit and inspect any of its properties, to examine its  corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to  discuss its affairs, finances and accounts with its directors, officers, and independent public  accountants, all at such reasonable times during normal business hours and as often as may be  reasonably desired, upon reasonable advance notice to the Borrower; provided, however, that when  an Event of Default exists the Administrative Agent or any Lender (or any of their respective  representatives or independent contractors) may do any of the foregoing at the expense of the  Borrower at any time during normal business hours and without advance notice.  6.11 Use of Proceeds.  Use the proceeds of the Credit Extensions for general corporate  purposes, including, without limitation, the issuance of letters of credit for the benefit of ceding  insurance companies which are Subsidiaries of the Borrower, not in contravention of any Law or  of any Loan Document.  6.12 Further Assurances.  At any time or from time to time upon reasonable request  by the Administrative Agent, the Borrower shall or shall cause any of the Borrower’s Subsidiaries  to execute and deliver such further documents and do such other acts and things as the  Administrative Agent may reasonably request in order to effect fully the purposes of this  Agreement and the other Loan Documents and to provide for payment of the Obligations in  accordance with the terms of this Agreement and the other Loan Documents.  Without limiting the  foregoing, promptly upon the request of the Administrative Agent, each Loan Party shall execute,  acknowledge, deliver and record and do any and all such further acts and deeds as the  Administrative Agent may reasonably request from time to time in order to ensure that the Secured  L/C Obligations (or, as applicable, other Obligations) are secured by a first priority perfected  interest in the assets of the applicable Loan Party stated to be pledged to secure such Secured L/C  Obligations (or, as applicable, other Obligations) pursuant to the applicable Security Agreement  and to perfect and maintain the validity, effectiveness and priority of the Security Agreement and  the Liens intended to be created thereby. Notwithstanding any provision of a Control Agreement  to the contrary, without the prior written consent of the Administrative Agent, no Loan Party shall  give directions or entitlement orders, as applicable, to Bank of America to make a delivery to any  Loan Party or any other Person of assets or properties (other than dividends and interest on the  Eligible Collateral) from the Collateral Account except in connection with the sale, investment or  reinvestment of Eligible Collateral the proceeds of which will be deposited into the Collateral  Account.  The Administrative Agent, on behalf of the Lenders, agrees that provided (a) no Default  exists and is continuing and (b) after giving effect to the proposed delivery, the Borrowing Base is  equal to or in excess of the Secured L/C Obligations, the Administrative Agent shall consent to  any such delivery within one Business Day after such request.  6.13 Collateral Requirements.  The Borrower shall cause there to be Eligible Collateral  of the Borrower in the Collateral Account such that the Borrowing Base is at all times equal to or  greater than the Secured L/C Obligations.  If at any time the Secured L/C Obligations exceed the  Borrowing Base, the Borrower shall as promptly as possible (and in any event within two (2)  Business Days) deposit into the Collateral Account Eligible Collateral of the Borrower or reduce  





 






14235438v5 27112.00011       89     the Secured L/C Obligations, or a combination of the foregoing, in an amount sufficient to  eliminate such excess.  6.14 Conduct of Insurance Business.  Cause each Significant Insurance Subsidiary to  (a) carry on or otherwise be associated with the business of a licensed insurance carrier and (b) do  all things necessary to renew, extend and continue in effect all Licenses which may at any time  and from time to time be necessary for such Significant Insurance Subsidiary to operate its  insurance business in compliance with all Applicable Laws; provided, however, that any such  Significant Insurance Subsidiary may withdraw from one or more states as an admitted insurer or  change the state of its domicile, if such withdrawal or change is in the best interests of the Borrower  and such Significant Insurance Subsidiary and could not reasonably be expected to have a Material  Adverse Effect.  TMK will (a) only provide reinsurance to Ceding Companies, (b) only engage in  the insurance business in which it is engaged or licensed as of the Effective Date, (c) do all things  necessary to remain duly incorporated, validly existing and in good standing in its jurisdiction of  formation, and (d) do all things necessary to renew, extend and continue in effect all Licenses  which may at any time and from time to time be necessary for it to operate its insurance business  in compliance with all Applicable Laws.  TMK will not change its jurisdiction of domicile without  the prior written consent of the Required Lenders.  The Borrower will cause TMK to be and remain  a Wholly-Owned Subsidiary and to be at all times Solvent.  6.15 Anti-Corruption Laws; Sanctions. Conduct its businesses in compliance in all  material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery  Act 2010, and other applicable anti-corruption legislation in other jurisdictions and with all  applicable Sanctions, and maintain policies and procedures designed to promote and achieve  compliance with such laws and Sanctions.  ARTICLE VII    NEGATIVE COVENANTS  So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation  hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:  7.01 Liens.  The Borrower shall not, nor shall it permit any Subsidiary to, directly or  indirectly, create, incur, assume or suffer to exist any Lien upon any of its property, assets or  revenues, whether now owned or hereafter acquired, other than: (a) Liens pursuant to any Loan  Document, (b) Liens securing loans, funding agreements and guaranteed investment contracts  entered into by to any Insurance Subsidiary with any FHLB pursuant to a membership in such  FHLB in the ordinary course of business in the aggregate principal amount not to exceed  $1,500,000,000 at any time outstanding and (c) other Liens securing Indebtedness, the sum of  which Indebtedness plus all Indebtedness permitted pursuant to Section 7.02(g) shall not exceed  $400,000,000 in aggregate principal amount.  7.02 Subsidiary Indebtedness.  The Borrower shall not permit any Subsidiary to,  directly or indirectly, create, incur, assume or suffer to exist any Indebtedness for borrowed money  or any obligations of such Subsidiary evidenced by bonds, debentures, notes, loan agreements or  other similar instruments, other than (a) Indebtedness pursuant to any Loan Document,  (b) unsecured Indebtedness of any Subsidiary owing to the Borrower or unsecured Indebtedness  





 






14235438v5 27112.00011       90     (including Guarantees) of any Subsidiary owing to another Subsidiary of the Borrower,  (c) unsecured Indebtedness of any Subsidiary of the Borrower outstanding at the time such  Subsidiary is acquired by the Borrower or any other Subsidiary of the Borrower, including  amendments thereof (provided that such Indebtedness shall have not been created in contemplation  of or in connection with such Person becoming a Subsidiary, the amount thereof is not thereafter  increased and the obligor of such Indebtedness is not thereafter changed), (d) unsecured  Indebtedness of any Subsidiary of the Borrower that is a special purpose finance entity that does  not own any assets (other than those assets consistent with its limited purpose status) and that does  not loan the proceeds of such Indebtedness to another Subsidiary, (e) unsecured Indebtedness of  any Subsidiary of the Borrower constituting letters of credit issued for insurance regulatory  purposes (including, for the avoidance of doubt, for reserve credit and required solvency ratio  purposes) and for which adequate insurance reserves or other appropriate provisions consistent  with such Subsidiary’s past practice has been made therefor, (f) Indebtedness consisting of loans,  funding agreements and guaranteed investment contracts entered into by to any Insurance  Subsidiary with any FHLB pursuant to a membership in such FHLB in the ordinary course of  business in the aggregate principal amount not to exceed $1,500,000,000 at any time outstanding  and (g) other Indebtedness, the sum of which Indebtedness plus all Indebtedness incurred by the  Borrower or any Subsidiary secured by Liens permitted pursuant to Section 7.01(c) shall not  exceed $400,000,000 in aggregate principal amount.  7.03 Acquisitions.  The Borrower shall not, nor shall it permit any Subsidiary to, make  any Acquisitions, except Permitted Acquisitions.  7.04 Fundamental Changes.  The Borrower shall not, nor shall it permit any Subsidiary  to, merge, dissolve, liquidate, or consolidate with or into another Person, except that, so long as  no Default exists or would result therefrom:  (a) Any Subsidiary may merge with (i) the Borrower, provided that the  Borrower shall be the continuing or surviving Person, or (ii) any one or more Wholly- Owned Subsidiaries; and  (b) The Borrower or any Subsidiary may merge or consolidate with or into any  other Person, provided that the Borrower or such Subsidiary shall be the continuing or the  surviving Person.  Notwithstanding anything in this Section 7.04 to the contrary, TMK shall not merge or  consolidate with or into any other Person.  7.05 Dispositions.  The Borrower shall not, nor shall it permit any Subsidiary to, make  any Disposition or series of related Dispositions or enter into any agreement to make any  Disposition(s) of all or substantially all of the Property of the Borrower and its Subsidiaries, taken  as a whole.  7.06 Use of Proceeds.  Use the proceeds of any Credit Extension, whether directly or  indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock  (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of  purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.  





 






14235438v5 27112.00011       91     7.07 Financial Covenants.  (a) Consolidated Net Worth.  The Borrower will maintain at all times  Consolidated Net Worth equal to not less than the sum of (i) $4,000,000,000, plus (ii) 50%  of the Net Proceeds received by the Borrower and its Subsidiaries from the issuance and  sale of Equity Interests of the Borrower or any Subsidiary (other than the issuance to the  Borrower or a Wholly-Owned Subsidiary), including any conversion of debt securities of  the Borrower or any Subsidiary into Equity Interests after June 30, 2021, other than  issuances of securities pursuant to any employee equity compensation plan or agreement  or other employee equity compensation arrangement, any employee benefit plan or  agreement or other employee benefit arrangement or any nonemployee director equity  compensation plan or agreement or other non-employee director equity compensation  arrangement or pursuant to the exercise or vesting of any employee or director stock  options, restricted stock or restricted stock units, warrants or other equity awards.  (b) Ratio of Consolidated Indebtedness to Consolidated Capitalization.  The  Borrower will maintain at all times a ratio of Consolidated Indebtedness to Consolidated  Capitalization of not greater than 0.40 to 1.0.  7.08 Sanctions.  Directly or indirectly, use the proceeds of any Credit Extension, or lend,  contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or  other Person, to fund any activities of or business with any Person that, at the time of such funding,  is the subject of Sanctions, or in any other manner that will result in a violation by any Person  (including any Person participating in the transaction, whether as Lender, Joint Arranger,  Administrative Agent, or otherwise) of Sanctions.  7.09 Anti-Corruption Laws.  Directly or indirectly use the proceeds of any Credit  Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of  1977, the UK Bribery Act 2010, and other anti-corruption legislation in other jurisdictions.  ARTICLE VIII    EVENTS OF DEFAULT AND REMEDIES  8.01 Events of Default.  Any of the following shall constitute an Event of Default:  (a) Non-Payment.  Any Loan Party fails to pay (i) when and as required to be  paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three  (3) days after the same becomes due, any interest on any Loan or on any L/C Obligation,  or any fee due hereunder, or (iii) within five (5) days after the same becomes due, any other  amount payable hereunder or under any other Loan Document; or  (b) Specific Covenants.  The Borrower or any Subsidiary fails to perform or  observe any term, covenant or agreement contained in any of Section 6.03, 6.05, 6.10, 6.11,  6.12, 6.13 or Article VII; or  (c) Other Defaults.  The Borrower or any Subsidiary fails to perform or observe  any other covenant or agreement (not specified in subsection (a) or (b) above) contained in  





 






14235438v5 27112.00011       92     any Loan Document on its part to be performed or observed and such failure continues for  thirty (30) days; or  (d) Representations and Warranties.  Any representation, warranty,  certification or statement of fact made or deemed made by or on behalf of any Loan Party  herein, in any other Loan Document, or in any document delivered in connection herewith  or therewith shall be incorrect or misleading when made or deemed made in any material  respect; or  (e) Cross-Default.  (i) The Borrower or any Subsidiary (A) fails to make any  payment when due (whether by scheduled maturity, required prepayment, acceleration,  demand, or otherwise) in respect of any Indebtedness or Guarantee (other than  Indebtedness hereunder and Indebtedness under Swap Contracts) under the Term Loan  Agreement or having an aggregate principal amount (including undrawn committed or  available amounts and including amounts owing to all creditors under any combined or  syndicated credit arrangement) of more than $50,000,000, or (B) fails to observe or  perform any other agreement or condition relating to any such Indebtedness or Guarantee  or contained in any instrument or agreement evidencing, securing or relating thereto, or  any other event occurs, the effect of which default or other event is to cause, or to permit  the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such  Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or  beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be  demanded or to become due or to be repurchased, prepaid, defeased or redeemed  (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such  Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable  or Cash Collateral in respect thereof to be demanded; or (ii) there occurs under any Swap  Contract an Early Termination Date (as defined in such Swap Contract) resulting from  (A) any event of default under such Swap Contract as to which the Borrower or any  Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any  Termination Event (as so defined) under such Swap Contract as to which the Borrower or  any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap  Termination Value owed by any Loan Party as a result thereof is greater than $50,000,000;  or  (f) Insolvency Proceedings, Etc.  The Borrower or any of its Subsidiaries  institutes or consents to the institution of any proceeding under any Debtor Relief Law, or  makes an assignment for the benefit of creditors; or applies for or consents to the  appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or  similar officer for it or for all or any material part of its property; or any receiver, trustee,  custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the  application or consent of such Person and the appointment continues undischarged or  unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to  any such Person or to all or any material part of its property is instituted without the consent  of such Person and continues undismissed or unstayed for 60 calendar days, or an order for  relief is entered in any such proceeding; or  (g) Inability to Pay Debts; Attachment.  (i) The Borrower or any Subsidiary  becomes unable or admits in writing its inability or fails generally to pay its debts as they  





 






14235438v5 27112.00011       93     become due, or (ii) any writ or warrant of attachment or execution or similar process is  issued or levied against all or any material part of the property of any such Person and is  not released, vacated or fully bonded within thirty (30) days after its issue or levy; or  (h) Judgments.  There is entered against the Borrower or any Subsidiary (i) a  final judgment or order for the payment of money in an aggregate amount exceeding  $50,000,000 (to the extent not covered by independent third-party insurance as to which  the insurer does not dispute coverage), or (ii) any one or more non-monetary final  judgments that have, or could reasonably be expected to have, individually or in the  aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are  commenced by any creditor upon such judgment or order, or (B) there is a period of 45  consecutive days during which a stay of enforcement of such judgment, by reason of  payment, a pending appeal or otherwise, is not in effect; or  (i) ERISA.  (i) An ERISA Event occurs with respect to a Pension Plan or  Multiemployer Plan which has resulted or could reasonably be expected to result in liability  of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the  PBGC in an aggregate amount in excess of $50,000,000, or (ii) the Borrower or any ERISA  Affiliate fails to pay when due, after the expiration of any applicable grace period, any  installment payment with respect to its withdrawal liability under Section 4201 of ERISA  under a Multiemployer Plan in an aggregate amount in excess of $25,000,000; or  (j) Invalidity of Loan Documents.  Any Loan Document, at any time after its  execution and delivery and for any reason other than as expressly permitted hereunder or  thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect;  or any Loan Party or any other Person contests in any manner the validity or enforceability  of any Loan Document; or any Loan Party denies that it has any or further liability or  obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan  Document; or any Loan Document shall for any reason cease to create a valid and perfected  first priority Lien on, or security interest in, any of the Collateral purported to be covered  thereby, in each case other than in accordance with the express terms hereof or thereof; or  (k) Change of Control.  There occurs any Change of Control of the Borrower  or the Borrower shall cease to own 100% of the outstanding Equity Interests of TMK; or  (l) Guaranty.  The Guaranty shall fail to remain in full force or effect or any  action shall be taken by the Borrower, any of its Subsidiaries or any Governmental  Authority to discontinue or to assert the invalidity or unenforceability thereof, or the  Borrower denies that it has any further liability hereunder, or gives notice to such effect;  or  (m) Licenses.  Any License of any Insurance Subsidiary held by such Insurance  Subsidiary on the Effective Date or acquired by such Insurance Subsidiary thereafter, the  loss of which would have, in the reasonable judgment of the Lenders, a Material Adverse  Effect, (i) shall be revoked by a final non-appealable order by the state which shall have  issued such License, or any action (whether administrative or judicial) to revoke such  License shall have been commenced against such Insurance Subsidiary which shall not  have been dismissed or contested in good faith within thirty (30) days of the  





 






14235438v5 27112.00011       94     commencement thereof, (ii) shall be suspended by such state for a period in excess of thirty  (30) days or (iii) shall not be reissued or renewed by such state upon the expiration thereof  following application for such reissuance or renewal by such Insurance Subsidiary.  TMK  shall cease to be duly licensed as a reinsurance company under Bermuda law.  8.02 Remedies Upon Event of Default.  If any Event of Default occurs and is  continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the  Required Lenders, take any or all of the following actions:  (a) declare the commitment of each Lender to make Loans and any obligation  of the Fronting Banks and the L/C Issuers to make L/C Credit Extensions to be terminated,  whereupon such commitments and obligation shall be terminated;  (b) declare the unpaid principal amount of all outstanding Loans, all interest  accrued and unpaid thereon, and all other amounts owing or payable hereunder or under  any other Loan Document to be immediately due and payable, without presentment,  demand, protest or other notice of any kind, all of which are hereby expressly waived by  the Loan Parties;  (c) require that each Loan Party (in addition to remaining in compliance with  Section 6.13 with respect to Secured Letters of Credit) Cash Collateralize its L/C  Obligations in respect of all Unsecured Letters of Credit in an amount equal to the then  Outstanding Amount thereof;  (d) require that the Eligible Collateral maintained in any Collateral Account to  comply with Section 6.13 consist solely of Cash or such other Eligible Collateral as the  Administrative Agent may require;  (e) direct the Applicable Issuing Party of each outstanding Letter of Credit not  to permit any further renewal of such Letter of Credit (in which case, pursuant to Section  2.03(b)(iii), such Applicable Issuing Party shall not permit further renewal of such Letter  of Credit); and  (f) exercise on behalf of itself, the L/C Issuers, the Fronting Banks and the  Lenders all rights and remedies available to it, the L/C Issuers, the Fronting Banks and the  Lenders under the Loan Documents;  provided, however, that upon the occurrence of an actual or deemed entry of an order for relief  with respect to any Loan Party under the Bankruptcy Code of the United States, the obligation of  each Lender to make Loans and any obligation of any L/C Issuer or Fronting Bank to make L/C  Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding  Loans and all interest and other amounts as aforesaid shall automatically become due and payable,  and the obligation of the Loan Parties to Cash Collateralize the L/C Obligations as aforesaid shall  automatically become effective, in each case without further act of the Administrative Agent or  any Lender.  8.03 Application of Funds.  After the exercise of remedies provided for in Section 8.02  (or after the Loans have automatically become immediately due and payable and the L/C  





 






14235438v5 27112.00011       95     Obligations have automatically been required to be Cash Collateralized as set forth in the proviso  to Section 8.02), any amounts received or held on account of the Obligations shall be applied by  the Administrative Agent in the following order:  First, to payment of that portion of the Obligations constituting fees, indemnities,  expenses and other amounts (including fees, charges and disbursements of counsel to the  Administrative Agent and amounts payable under Article III) payable to the  Administrative Agent in its capacity as such;  Second, to payment of that portion of the Obligations constituting fees, indemnities  and other amounts (other than principal and interest) payable to the Lenders, the L/C  Administrator and the Fronting Banks (including fees, charges and disbursements of  counsel to the respective Lenders, the L/C Administrator and the Fronting Banks (including  fees and time charges for attorneys who may be employees of any Lender, the L/C  Administrator or the Fronting Banks) and amounts payable under Article III), ratably  among them in proportion to the amounts described in this clause Second payable to them;  Third, to payment of that portion of the Obligations constituting accrued and unpaid  interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders  and the Fronting Banks in proportion to the respective amounts described in this clause  Third payable to them;  Fourth, to payment of that portion of the Obligations constituting unpaid principal  of the Loans and L/C Borrowings and to the Administrative Agent for the account of (x) the  Fronting Banks, in the case of Fronted Letters of Credit and (y) the Lenders, in the case of  Several Letters of Credit, to Cash Collateralize that portion of L/C Obligations comprised  of the aggregate undrawn amount of Letters of Credit, ratably among the Lenders and the  Fronting Banks in proportion to the respective amounts described in this clause Fourth held  by them;  Fifth, to payment of Swap Obligations, ratably among the Lenders (or any Affiliate  of any Lender entering into a Swap Contract provided that such Lender was a Lender at  the time such Swap Contract was entered into) in proportion to the respective amounts  described in this clause Fifth held by them; and  Last, the balance, if any, after all of the Obligations have been indefeasibly paid in  full, to the Borrower or as otherwise required by Law.  Subject to Sections 2.03(c) and 2.15, 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.  





 






14235438v5 27112.00011       96     ARTICLE IX    ADMINISTRATIVE AGENT  9.01 Appointment and Authority.  Each of the Lenders, the L/C Administrator and each Fronting Bank hereby irrevocably  appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under  the other Loan Documents and authorizes the Administrative Agent to take such actions on its  behalf and to exercise such powers as are delegated to the Administrative Agent by the terms  hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The  provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, the  L/C Administrator and each Fronting Bank, and neither the Borrower nor any other Loan Party  shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed  that the use of the term “agent” herein or in any other Loan Documents (or any other similar term)  with reference to the Administrative Agent is not intended to connote any fiduciary or other  implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead  such term is used as a matter of market custom, and is intended to create or reflect only an  administrative relationship between contracting parties.  9.02 Rights as a Lender.  The Person serving as the Administrative Agent hereunder  shall have the same rights and powers in its capacity as a Lender as any other Lender and may  exercise the same as though it were not the Administrative Agent and the term “Lender” or  “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,  include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such  Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the  financial advisor or in any other advisory capacity for and generally engage in any kind of business  with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the  Administrative Agent hereunder and without any duty to account therefor to the Lenders.  9.03 Exculpatory Provisions.  The Administrative Agent or the Joint Arrangers, as  applicable, shall not have any duties or obligations except those expressly set forth herein and in  the other Loan Documents.  Without limiting the generality of the foregoing, the Administrative  Agent or the Joint Arrangers, as applicable:  (a) shall not be subject to any fiduciary or other implied duties, regardless of  whether a Default has occurred and is continuing;  (b) shall not have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated  hereby or by the other Loan Documents that the Administrative Agent is required to  exercise as directed in writing by the Required Lenders (or such other number or percentage  of the Lenders as shall be expressly provided for herein or in the other Loan Documents),  provided that the Administrative Agent shall not be required to take any action that, in its  opinion or the opinion of its counsel, may expose the Administrative Agent to liability or  that is contrary to any Loan Document or Applicable Law, including for the avoidance of  doubt any action that may be in violation of the automatic stay under any Debtor Relief  





 






14235438v5 27112.00011       97     Law or that may effect a forfeiture, modification or termination of property of a Defaulting  Lender in violation of any Debtor Relief Law;  (c) shall not have any duty or responsibility to disclose, and shall not be liable  for the failure to disclose, to any Lender, any credit or other information concerning the  business, prospects, operations, property, financial and other condition or creditworthiness  of the Borrower or any of its Affiliates, that is communicated to, obtained or in the  possession of, the Administrative Agent, any Joint Arranger or any of their Related Parties  in any capacity, except for notices, reports and other documents expressly required to be  furnished to the Lenders by the Administrative Agent herein;  (d) shall not be liable for any action taken or not taken by it (i) with the consent  or at the request of the Required Lenders (or such other number or percentage of the  Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith  shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or  (ii) in the absence of its own gross negligence or willful misconduct as determined by a  court of competent jurisdiction by final and nonappealable judgement.  The Administrative  Agent shall be deemed not to have knowledge of any Default unless and until notice  describing such Default is given in writing to the Administrative Agent by a Loan Party, a  Lender or a Fronting Bank; and  (e) shall not be responsible for or have any duty to ascertain or inquire into  (i) any statement, warranty or representation made in or in connection with this Agreement  or any other Loan Document, (ii) the contents of any certificate, report or other document  delivered hereunder or thereunder or in connection herewith or therewith, (iii) the  performance or observance of any of the covenants, agreements or other terms or  conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,  enforceability, effectiveness or genuineness of this Agreement, any other Loan Document  or any other agreement, instrument or document or (v) the satisfaction of any condition set  forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly  required to be delivered to the Administrative Agent.  9.04 Reliance by Administrative Agent.  The Administrative Agent shall be entitled to  rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent,  statement, instrument, document or other writing (including any electronic message, Internet or  intranet website posting or other distribution) believed by it to be genuine and to have been signed,  sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely  upon any statement made to it orally or by telephone and believed by it to have been made by the  proper Person, and shall not incur any liability for relying thereon.  In determining compliance  with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that  by its terms must be fulfilled to the satisfaction of a Lender or a Fronting Bank, the Administrative  Agent may presume that such condition is satisfactory to such Lender or such Fronting Bank unless  the Administrative Agent shall have received notice to the contrary from such Lender or such  Fronting Bank prior to the making of such Loan or the issuance of such Letter of Credit.  The  Administrative Agent may consult with legal counsel (who may be counsel for any Loan Party),  independent accountants and other experts selected by it, and shall not be liable for any action  taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.  





 






14235438v5 27112.00011       98     9.05 Delegation of Duties.  The Administrative Agent may perform any and all of its  duties and exercise its rights and powers hereunder or under any other Loan Document by or  through any one or more sub-agents appointed by the Administrative Agent.  The Administrative  Agent and any such sub-agent may perform any and all of its duties and exercise its rights and  powers by or through their respective Related Parties.  The exculpatory provisions of this Article  shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any  such sub-agent, and shall apply to their respective activities in connection with the syndication of  the credit facilities provided for herein as well as activities as Administrative Agent.  The  Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents  except to the extent that a court of competent jurisdiction determines in a final and non appealable  judgment that the Administrative Agent acted with gross negligence or willful misconduct in the  selection of such sub-agents.  9.06 Resignation of Administrative Agent.  The Administrative Agent may at any time  give notice of its resignation to the Lenders, the Fronting Banks, the L/C Administrator and the  Loan Parties.  Upon receipt of any such notice of resignation, the Required Lenders shall have the  right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an  office in the United States, or an Affiliate of any such bank with an office in the United States.  If  no such successor shall have been so appointed by the Required Lenders and shall have accepted  such appointment within 30 days after the retiring Administrative Agent gives notice of its  resignation, then the retiring Administrative Agent may on behalf of the Lenders, the L/C  Administrator and the Fronting Banks, appoint a successor Administrative Agent meeting the  qualifications set forth above; provided that if the Administrative Agent shall notify the Loan  Parties and the Lenders that no qualifying Person has accepted such appointment, then such  resignation shall nonetheless become effective in accordance with such notice and (1) the retiring  Administrative Agent shall be discharged from its duties and obligations hereunder and under the  other Loan Documents (except that in the case of any collateral security held by the Administrative  Agent on behalf of the Lenders or the Fronting Banks under any of the Loan Documents, the  retiring Administrative Agent shall continue to hold such collateral security until such time as a  successor Administrative Agent is appointed) and (2) all payments, communications and  determinations provided to be made by, to or through the Administrative Agent shall instead be  made by or to each Lender, the L/C Administrator and each Fronting Bank directly, until such time  as the Required Lenders appoint a successor Administrative Agent as provided for above in this  Section.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,  such successor shall succeed to and become vested with all of the rights, powers, privileges and  duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall  be discharged from all of its duties and obligations hereunder or under the other Loan Documents  (if not already discharged therefrom as provided above in this Section).  The fees payable by the  Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor  unless otherwise agreed between the Borrower and such successor.  After the retiring  Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions  of this Article and Section 10.04 shall continue in effect for the benefit of such retiring  Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions  taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as  Administrative Agent.  





 






14235438v5 27112.00011       99     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall  also constitute its resignation as a Fronting Bank, L/C Administrator and Swing Line Lender.   Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such  successor shall succeed to and become vested with all of the rights, powers, privileges and duties  of the retiring Fronting Bank, L/C Administrator and Swing Line Lender, (b) the retiring Fronting  Bank, L/C Administrator and 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  Fronting Bank and L/C Administrator shall issue letters of credit in substitution for the Letters of  Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory  to the retiring Fronting Bank and L/C Administrator to effectively assume the obligations of the  retiring  Fronting Bank and L/C Administrator with respect to such Letters of Credit.  9.07 Non-Reliance on Administrative Agent and Other Lenders.  Each Lender, each  Fronting Bank and the L/C Administrator each expressly acknowledges that none of the  Administrative Agent nor any Joint Arranger has made any representation or warranty to it, and  that no act by the Administrative Agent or any Joint Arranger hereafter taken, including any  consent to, and acceptance of any assignment or review of the affairs of the Borrower or any  Affiliate thereof, shall be deemed to constitute any representation or warranty by the  Administrative Agent or any Joint Arranger to any Lender as to any matter, including whether the  Administrative Agent or any Joint Arranger have disclosed material information in their (or their  Related Parties’) possession.  Each Lender represents to the Administrative Agent and each Joint  Arranger that it has, independently and without reliance upon the Administrative Agent, any  Fronting Bank, L/C Administrator, Joint Arranger 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 of, appraisal of, and investigation into, the business, prospects, operations, property,  financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and  all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and  made its own decision to enter into this Agreement and to extend credit to the Loan Parties  hereunder.  Each Lender and each Fronting Bank also acknowledges that it will, independently  and without reliance upon the Administrative Agent, any Joint Arranger, any other Lender, any  other Fronting Bank or any of their Related Parties and based on such documents and information  as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals  and decisions in taking or not taking action under or based upon this Agreement, any other Loan  Document or any related agreement or any document furnished hereunder or thereunder, and to  make such investigations as it deems necessary to inform itself as to the business, prospects,  operations, property, financial and other condition and creditworthiness of the Loan Parties.  Each  Lender represents and warrants that (i) the Loan Documents set forth the terms of a commercial  lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the  ordinary course and is entering into this Agreement as a Lender for the purpose of making,  acquiring or holding commercial loans and providing other facilities set forth herein as may be  applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other  type of financial instrument, and each Lender agrees not to assert a claim in contravention of the  foregoing. Each Lender represents and warrants that it is sophisticated with respect to decisions to  make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may  be applicable to such Lender, and either it, or the Person exercising discretion in making its  decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is  





 






14235438v5 27112.00011       100     experienced in making, acquiring or holding such commercial loans or providing such other  facilities.  9.08 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of  the Joint Arrangers, Co-Syndication Agents or Co-Documentation Agents listed on the cover page  hereof shall have any powers, duties or responsibilities under this Agreement or any of the other  Loan Documents, except in its capacity as applicable, as a Lender, Administrative Agent, L/C  Administrator or Fronting Bank hereunder.  9.09 Administrative Agent May File Proofs of Claim.  In case of the pendency of any  proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan  Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C  Obligation shall then be due and payable as herein expressed or by declaration or otherwise and  irrespective of whether the Administrative Agent shall have made any demand on the Loan Parties)  shall be entitled and empowered, by intervention in such proceeding or otherwise  (a) to file and prove a claim for the whole amount of the principal and interest  owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that  are owing and unpaid and to file such other documents as may be necessary or advisable  in order to have the claims of the Lenders, Fronting Banks, L/C Administrator and the  Administrative Agent (including any claim for the reasonable compensation, expenses,  disbursements and advances of the Lenders, the Fronting Banks, L/C Administrator and  the Administrative Agent and their respective agents and counsel and all other amounts  due the Lenders, the Fronting Banks, L/C Administrator and the Administrative Agent  under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial proceeding; and  (b) to collect and receive any monies or other property payable or deliverable  on any such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such judicial proceeding is hereby authorized by each Lender, each Fronting Bank and the L/C  Administrator to make such payments to the Administrative Agent and, in the event that the  Administrative Agent shall consent to the making of such payments directly to the Lenders and  the Fronting Banks or the L/C Administrator, to pay to the Administrative Agent any amount due  for the reasonable compensation, expenses, disbursements and advances of the Administrative  Agent and its agents and counsel, and any other amounts due the Administrative Agent under  Sections 2.09 and 10.04.  Nothing contained herein shall be deemed to authorize the Administrative Agent to  authorize or consent to or accept or adopt on behalf of any Lender, the L/C Administrator or any  Fronting Bank any plan of reorganization, arrangement, adjustment or composition affecting the  Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect  of the claim of any Lender, the L/C Administrator or any Fronting Bank in any such proceeding.  9.10 No Other Duties, etc.  Anything herein to the contrary notwithstanding, none of  the Joint Arrangers, Joint Book Runners, Co-Syndication Agents, Co-Documentation Agents or  Managing Agents listed on the cover page hereof or Schedule or signature pages hereto shall have  any powers, duties or responsibilities under this Agreement or any of the other Loan Documents,  





 






14235438v5 27112.00011       101     except in their capacity, as applicable, as the Administrative Agent, Swing Line Lender, LC Issuer,  L/C Administrator or Lender.  9.11 Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became  a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, for the benefit of,  the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the  Borrower, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of  Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to  such Lender’s entrance into, participation in, administration of and performance of  the Loans, the Commitments or this Agreement,  (ii) the transaction exemption set forth in one or more PTEs, such as  PTE 84-14 (a class exemption for certain transactions determined by independent  qualified professional asset managers), PTE 95-60 (a class exemption for certain  transactions involving insurance company general accounts), PTE 90-1 (a class  exemption for certain transactions involving insurance company pooled separate  accounts), PTE 91-38 (a class exemption for certain transactions involving bank  collective investment funds) or PTE 96-23 (a class exemption for certain  transactions determined by in-house asset managers), is applicable with respect to  such Lender’s entrance into, participation in, administration of and performance of  the Loans, the 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  Commitments and this Agreement, (C) the entrance into, participation in,  administration of and performance of the Loans, 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  Commitments and this Agreement, or   (iv) such other representation, warranty and covenant as may be agreed  in writing between the Administrative Agent, in its sole discretion, and such  Lender.  (b) In addition, unless either (1) sub-clause (i) in the immediately preceding  clause (a) is true with respect to a Lender or (2) a Lender has provided another  representation, warranty and covenant in accordance with sub-clause (iv) in the  immediately preceding clause (a), such Lender further (x) represents and warrants, as of  the date such Person became a Lender party hereto, to, and (y) covenants, from the date  





 






14235438v5 27112.00011       102     such Person became a Lender party hereto to the date such Person ceases being a Lender  party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of  doubt, to or for the benefit of the Borrower, that the Administrative Agent is not a fiduciary  with respect to the assets of such Lender involved in such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Commitments and  this Agreement (including in connection with the reservation or exercise of any rights by  the Administrative Agent under this Agreement, any Loan Document or any documents  related hereto or thereto).  9.12 Recovery of Erroneous Payments.  Without limitation of any other provision in  this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to  any Lender or any L/C Issuer (the “Credit Party”), whether or not in respect of an Obligation due  and owing by any Loan Party at such time, where such payment is a Rescindable Amount, then in  any such event, each Credit Party receiving a Rescindable Amount severally agrees to repay to the  Administrative Agent forthwith on demand the Rescindable Amount received by such Credit Party   in immediately available funds in the currency so received, with interest thereon, for each day from  and including the date such Rescindable Amount is received by it to but excluding the date of  payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate  determined by the Administrative Agent in accordance with banking industry rules on interbank  compensation. Each Credit Party irrevocably waives any and all defenses, including any  “discharge for value” (under which a creditor might otherwise claim a right to retain funds  mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its  obligation to return any Rescindable Amount.  The Administrative Agent shall inform each Credit  Party promptly upon determining that any payment made to such Credit Party comprised, in whole  or in part, a Rescindable Amount.  ARTICLE X    MISCELLANEOUS  10.01 Amendments, Etc.  No amendment or waiver of any provision of this Agreement  or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall  be effective unless in writing signed by the Required Lenders (or by the Administrative Agent at  the request and on behalf of the Required Lenders) and the Loan Parties, as the case may be, and  acknowledged by the Administrative Agent, and each such waiver or consent shall be effective  only in the specific instance and for the specific purpose for which given; provided, however, that  no such amendment, waiver or consent shall:  (a) waive any condition set forth in Section 4.01(a) without the written consent  of each Lender;  (b) extend or increase any Commitment of any Lender (or reinstate any  Commitment terminated pursuant to Section 8.02) without the written consent of such  Lender;  (c) postpone any date fixed by this Agreement or any other Loan Document for  any payment of principal, interest, fees or other amounts due to the Lenders (or any of  them) hereunder or under any other Loan Document without the written consent of each  





 






14235438v5 27112.00011       103     Lender directly affected thereby (except in connection with the waiver of applicability of  any post-default increase in interest rates (which waiver shall be effective with the consent  of the Required Lenders));  (d) reduce the principal of, or the rate of interest specified herein on, any Loan  or L/C Borrowing, or (subject to clause (v) of the second proviso to this Section 10.01) any  fees or other amounts payable hereunder or under any other Loan Document without the  written consent of each Lender directly affected thereby; provided, however, that only the  consent of the Required Lenders shall be necessary (i) to amend the definition of “Default  Rate” or to waive any obligation of any Loan Party to pay interest or Letter of Credit Fees  at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term  used therein) even if the effect of such amendment would be to reduce the rate of interest  on any Loan or L/C Borrowing or to reduce any fee payable hereunder;  (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro  rata sharing of payments required thereby or change Section 2.06 in a manner that would  alter the pro rata allocation of reductions in the Aggregate Commitment, in the case of each  of the foregoing without the written consent of each Lender;  (f) change any provision of this Section or the definition of “Required Lenders”  or any other provision hereof specifying the number or percentage of Lenders required to  amend, waive or otherwise modify any rights hereunder or make any determination or grant  any consent hereunder, without the written consent of each Lender;  (g) release all or substantially all of the Collateral in any transaction or series  of related transactions, without the written consent of each Lender; or  (h) release the Guaranty provided in Section 10.19,  and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and  signed by a Fronting Bank in addition to the Lenders required above, affect the rights or  duties of such Fronting Bank under this Agreement or any Issuer Document relating to any  Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall,  unless in writing and signed by the L/C Administrator in addition to the Lenders required  above, affect the rights or duties of the L/C Administrator under this Agreement or any  Issuer Document relating to any Letter of Credit issued or to be issued by it; (iii) no  amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender  in addition to the Lenders required above, affect the rights or duties of the Swing Line  Lender under this Agreement; (iv) no amendment, waiver or consent shall, unless in  writing and signed by the Administrative Agent in addition to the Lenders required above,  affect the rights or duties of the Administrative Agent under this Agreement or any other  Loan Document; (v) the Fee Letters may be amended, or rights or privileges thereunder  waived, in a writing executed only by the parties thereto; and (vi) notwithstanding anything  herein to the contrary, no amendment or amendment and restatement of this Agreement  which is in all other respects approved by the Lenders in accordance with this Section 10.01  shall require the consent or approval of any Lender (A) which immediately after giving  effect to such amendment or amendment and restatement, shall have no Commitment or  other obligation to maintain or extend credit under this Agreement (as so amended or  





 






14235438v5 27112.00011       104     amended and restated), including, without limitation, any obligation in respect of any  drawing under or participation in any Letter of Credit and (B) which, substantially  contemporaneously with the effectiveness of such amendment or amendment and  restatement, is paid in full all amounts owing to it hereunder (including, without limitation  principal, interest and fees, but excluding contingent obligations that are not due and  payable and any amounts secured by collateral arrangements on terms and, as applicable,  from a financial institution, that are satisfactory to such Lender in its sole discretion).  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right  to approve or disapprove any amendment, waiver or consent hereunder, except that the  Commitment of such Lender may not be increased or extended without the consent of such  Lender.  10.02 Notices; Effectiveness; Electronic Communication.  (a) Notices Generally.  Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in subsection (b)  below), all notices and other communications provided for herein shall be in writing and  shall be delivered by hand or overnight courier service, mailed by certified or registered  mail or sent by electronic mail as follows, and all notices and other communications  expressly permitted hereunder to be given by telephone shall be made to the applicable  telephone number, as follows:  (i) if to the Loan Parties, the Administrative Agent, the L/C  Administrator or a Fronting Bank or the Swing Line Lender to the address,  telecopier number, electronic mail address or telephone number specified for such  Person on Schedule 10.02; and  (ii) if to any other Lender, to the address, electronic mail address or  telephone number specified in its Administrative Questionnaire.  Notices and other  communications sent by hand or overnight courier service, or mailed by certified  or registered mail, shall be deemed to have been given when received; notices and  other communications sent by electronic mail shall be deemed to have been given  when sent (except that, if not given during normal business hours for the recipient,  shall be deemed to have been given at the opening of business on the next Business  Day for the recipient).  Notices and other communications delivered through  electronic communications to the extent provided in subsection (b) below, shall be  effective as provided in such subsection (b).  (b) Electronic Communications.  Notices and other communications to the  Lenders, L/C Administrator and the Fronting Banks hereunder may be delivered or  furnished by electronic communication (including e-mail and Internet or intranet websites)  pursuant to procedures approved by the Administrative Agent, provided that the foregoing  shall not apply to notices to any Lender or the Applicable Issuing Party pursuant to  Article II if such Lender or the Applicable Issuing Party, as applicable, has notified the  Administrative Agent that it is incapable of receiving notices under such Article by  electronic communication.  The Administrative Agent or any Loan Party 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  





 






14235438v5 27112.00011       105     procedures may be limited to particular notices or communications.  Unless the  Administrative Agent otherwise prescribes, (i) notices and other communications sent to  an e-mail address shall be deemed received upon the sender’s receipt of an  acknowledgement from the intended recipient (such as by the “return receipt requested”  function, as available, return e-mail or other written acknowledgement), provided that if  such notice or other communication is not sent during the normal business hours of the  recipient, such notice or communication shall be deemed to have been sent at the opening  of business on the next Business Day for the recipient, and (ii) notices or communications  posted to an Internet or intranet website shall be deemed received upon the deemed receipt  by the intended recipient at its e-mail address as described in the foregoing clause (i) of  notification that such notice or communication is available and identifying the website  address therefor.  (c) The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS  AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT  WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER  MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY  DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER  MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR  STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS  FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY  RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE  BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS  OR THE PLATFORM.  In no event shall the Administrative Agent or any of its Related  Parties (collectively, the “Agent Parties”) have any liability to the Loan Parties, any  Lender, or any other Person for losses, claims, damages, liabilities or expenses of any kind  (whether in tort, contract or otherwise) arising out of the Loan Parties’ or the  Administrative Agent’s transmission of Borrower Materials or notices through the  Platform, any other electronic platform or electronic messaging service, or through the  Internet.  (d) Change of Address, Etc.  Each of the Loan Parties, the Administrative  Agent, the L/C Administrator, any Fronting Bank, and the Swing Line Lender may change  its address, electronic mail address or telephone number for notices and other  communications hereunder by notice to the other parties hereto.  Each other Lender may  change its address, electronic mail address or telephone number for notices and other  communications hereunder by notice to the Loan Parties, the Administrative Agent, any  Fronting Bank, the L/C Administrator and the Swing Line Lender. In addition, each Lender  agrees to notify the Administrative Agent from time to time to ensure that the  Administrative Agent has on record (i) an effective address, contact name, telephone  number and electronic mail address to which notices and other communications may be  sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender  agrees to cause at least one individual at or on behalf of such Public Lender to at all times  have selected the “Private Side Information” or similar designation on the content  declaration screen of the Platform in order to enable such Public Lender or its delegate, in  accordance with such Public Lender’s compliance procedures and Applicable Law,  including United States Federal and state securities Laws, to make reference to Borrower  





 






14235438v5 27112.00011       106     Materials that are not made available through the “Public Side Information” portion of the  Platform and that may contain material non-public information with respect to the  Borrower or its securities for purposes of United States Federal or state securities laws.  (e) Reliance by Administrative Agent, L/C Issuer and Lenders.  The  Administrative Agent, the L/C Administrator, the Fronting Banks and the Lenders shall be  entitled to rely and act upon any notices (including telephonic Loan Notices and Swing  Line Loan Notices) purportedly given by or on behalf of the Loan Parties 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.  Each Loan Party shall  indemnify the Administrative Agent, the L/C Administrator, the Fronting Banks, each  Lender and the Related Parties of each of them from all losses, costs, expenses and  liabilities resulting from the reliance by such Person on each notice purportedly given by  or on behalf of the Loan Parties.  All telephonic notices to and other telephonic  communications with the Administrative Agent may be recorded by the Administrative  Agent, and each of the parties hereto hereby consents to such recording.  10.03 No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, the  L/C Administrator, any Fronting Bank or the Administrative Agent to exercise, and no delay by  any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a  waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege  hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy,  power or privilege.  The rights, remedies, powers and privileges herein provided are cumulative  and not exclusive of any rights, remedies, powers and privileges provided by law.  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 shall be vested exclusively in, and all actions and proceedings at law in  connection with such enforcement shall be instituted and maintained exclusively by, the  Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided,  however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its  own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative  Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff  rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (c) any Lender  from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency  of a proceeding relative to the Borrower under any Debtor Relief Law; and provided, further, that  if at any time there is no Person acting as Administrative Agent hereunder and under the other  Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the  Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses  (b) and (c) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent  of the Required Lenders, enforce any rights and remedies available to it and as authorized by the  Required Lenders.  10.04 Expenses; Indemnity; Damage Waiver.  (a) Costs and Expenses.  Each Loan Party shall pay (i) all reasonable out-of- pocket expenses incurred by the Administrative Agent and its Affiliates (including the  





 






14235438v5 27112.00011       107     reasonable fees, charges and disbursements of counsel for the Administrative Agent), in  connection with the syndication of the credit facilities provided for herein, the preparation,  negotiation, execution, delivery and administration of this Agreement and the other Loan  Documents or any amendments, modifications or waivers of the provisions hereof or  thereof (whether or not the transactions contemplated hereby or thereby shall be  consummated), (ii) all reasonable out-of-pocket expenses incurred by the Applicable  Issuing Party in connection with the issuance, amendment, renewal or extension of any  Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of- pocket expenses incurred by the Administrative Agent, any Lender or the Applicable  Issuing Party (including the fees, charges and disbursements of any outside counsel for the  Administrative Agent, any Lender or the Applicable Issuing Party) in connection with the  enforcement or protection of its rights (A) in connection with this Agreement and the other  Loan Documents, including its rights under this Section, or (B) in connection with the  Loans made or Letters of Credit issued hereunder, including all such out-of-pocket  expenses incurred during any workout, restructuring or negotiations in respect of such  Loans or Letters of Credit.  (b) INDEMNIFICATION BY THE LOAN PARTIES.  EACH LOAN PARTY  SHALL INDEMNIFY THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT  THEREOF), EACH LENDER, EACH FRONTING BANK, THE L/C  ADMINISTRATOR, AND EACH RELATED PARTY OF ANY OF THE FOREGOING  PERSONS (EACH SUCH PERSON BEING CALLED AN “INDEMNITEE”) AGAINST,  AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES,  CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES (INCLUDING THE  REASONABLE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR  ANY INDEMNITEE), INCURRED BY ANY INDEMNITEE OR ASSERTED  AGAINST ANY INDEMNITEE BY ANY THIRD PARTY OR BY ANY LOAN PARTY  ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (I) THE  EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER LOAN  DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED  HEREBY OR THEREBY (INCLUDING, WITHOUT LIMITATION, THE  INDEMNITEE’S RELIANCE ON ANY COMMUNICATION EXECUTED USING AN  ELECTRONIC SIGNATURE, OR IN THE FORM OF AN ELECTRONIC RECORD),  THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE  OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF  THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, (II) ANY LOAN  OR LETTER OF CREDIT OR THE USE OR PROPOSED USE OF THE PROCEEDS  THEREFROM (INCLUDING ANY REFUSAL BY ANY L/C ISSUER TO HONOR A  DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS  PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY  COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT), (III) ANY ACTUAL  OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR  FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY  OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN  ANY WAY TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR (IV) ANY  ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR  PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON  





 






14235438v5 27112.00011       108     CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A  THIRD PARTY OR BY ANY LOAN PARTY, AND REGARDLESS OF WHETHER  ANY INDEMNITEE IS A PARTY THERETO, IN ALL CASES, WHETHER OR NOT  CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE  COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE  INDEMNITEE; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY  INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS,  DAMAGES, LIABILITIES OR RELATED EXPENSES (X) ARE DETERMINED BY A  COURT OF COMPETENT JURISDICTION BY FINAL AND NON-APPEALABLE  JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR  WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR (Y) RESULT FROM A  CLAIM BROUGHT BY ANY LOAN PARTY AGAINST AN INDEMNITEE FOR  BREACH IN BAD FAITH OF SUCH INDEMNITEE’S OBLIGATIONS HEREUNDER  OR UNDER ANY OTHER LOAN DOCUMENT, IF SUCH LOAN PARTY HAS  OBTAINED A FINAL AND NON-APPEALABLE JUDGMENT IN ITS FAVOR ON  SUCH CLAIM AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.  (c) Reimbursement by Lenders.  To the extent that the Loan Parties for any  reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this  Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C  Administrator, the Fronting Banks or any Related Party of any of the foregoing, each  Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the  L/C Administrator, the Fronting Banks or such Related Party, as the case may be, such  Lender’s Applicable Percentage (determined as of the time that the applicable  unreimbursed expense or indemnity payment is sought based on each Lender’s share of the  Total Credit Exposure at such time) of such unpaid amount, provided that the unreimbursed  expense or indemnified loss, claim, damage, liability or related expense, as the case may  be, was incurred by or asserted against the Administrative Agent (or any such sub-agent)  or the Applicable Issuing Party in its capacity as such, or against any Related Party of any  of the foregoing acting for the Administrative Agent (or any such sub-agent) or the  Applicable Issuing Party in connection with such capacity.  The obligations of the Lenders  under this subsection (c) are subject to the provisions of Section 2.12(e).  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by  Applicable Law, the Loan Parties shall not assert, and hereby waives, and acknowledges  that no other Person shall have, any claim against any Indemnitee, on any theory of liability,  for special, indirect, consequential or punitive damages (as opposed to direct or actual  damages) arising out of, in connection with, or as a result of, this Agreement, any other  Loan Document or any agreement or instrument contemplated hereby, the transactions  contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds  thereof.  No Indemnitee referred to in subsection (b) above shall be liable for any damages  arising from the use by unintended recipients of any information or other materials  distributed by it through telecommunications, electronic or other information transmission  systems in connection with this Agreement or the other Loan Documents or the transactions  contemplated hereby or thereby.  





 






14235438v5 27112.00011       109     (e) Payments.  All amounts due under this Section shall be payable not later  than ten (10) Business Days after demand therefor.  (f) Survival.  The agreements in this Section shall survive the resignation of  the Administrative Agent, the L/C Administrator or any Fronting Bank, the replacement of  any Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all the other Obligations.  10.05 Payments Set Aside.  To the extent that any payment by or on behalf of the Loan  Parties is made to the Administrative Agent, any Fronting Bank, the L/C Administrator or any  Lender, or the Administrative Agent, the L/C Administrator, such Fronting Bank or any Lender  exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is  subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including  pursuant to any settlement entered into by the Administrative Agent, such Fronting Bank, the L/C  Administrator or such Lender in its discretion) to be repaid to a trustee, receiver or any other party,  in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent  of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived  and continued in full force and effect as if such payment had not been made or such setoff had not  occurred, and (b) each Lender, each Fronting Bank and the L/C Administrator severally agrees to  pay to the Administrative Agent upon demand its applicable share (without duplication) of any  amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the  date of such demand to the date such payment is made at a rate per annum equal to the Federal  Funds Rate from time to time in effect.  The obligations of the Lenders, the L/C Administrator and  the Fronting Banks under clause (b) of the preceding sentence shall survive the payment in full of  the Obligations and the termination of this Agreement.  10.06 Successors and Assigns; Participations.  (a) Successors and Assigns Generally.  The provisions of this Agreement shall  be binding upon and inure to the benefit of the parties hereto and their respective successors  and assigns permitted hereby, except that neither Loan Party may assign or otherwise  transfer any of its rights or obligations hereunder without the prior written consent of the  Administrative Agent and each Lender and no Lender may assign or otherwise transfer any  of its rights or obligations hereunder except (i) to an assignee in accordance with the  provisions of subsection (b) of this Section, (ii) by way of participation in accordance with  the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of  a security interest subject to the restrictions of subsection (e) of this Section (and any other  attempted assignment or transfer by any party hereto shall be null and void).  Nothing in  this Agreement, expressed or implied, shall be construed to confer upon any Person (other  than the parties hereto, their respective successors and assigns permitted hereby,  Participants to the extent provided in subsection (d) of this Section and, to the extent  expressly contemplated hereby, the Related Parties of each of the Administrative Agent,  the L/C Administrator, the Fronting Banks and the Lenders) any legal or equitable right,  remedy or claim under or by reason of this Agreement.  (b) Assignments by Lenders.  Any Lender may at any time assign to one or  more assignees all or a portion of its rights and obligations under this Agreement (including  all or a portion of its Commitment and the Loans (including for purposes of this  





 






14235438v5 27112.00011       110     subsection (b) direct obligations under and participations in L/C Obligations) at the time  owing to it); provided that any such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount  of the assigning Lender’s Commitment and related Loans at the time owing  to it or in the case of an assignment to a Lender, an Affiliate of a Lender or  an Approved Fund, no minimum amount need be assigned; and  (B) in any case not described in subsection (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 Assumption with respect to such assignment is  delivered to the Administrative Agent or, if “Trade Date” is specified in the  Assignment and Assumption, as of the Trade Date) shall not be less than  $5,000,000, unless each of the Administrative Agent and, so long as no  Event of Default has occurred and is continuing, the Borrower otherwise  consents (each such consent not to be unreasonably withheld or delayed).  (ii) 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;  (iii) Required Consents.  No consent shall be required for any  assignment except to the extent required by subsection (b)(i)(B) of this Section and,  in addition:  (A) the consent of the Borrower (such consent not to be  unreasonably withheld or delayed) shall be required unless (x) an Event of  Default has occurred and is continuing at the time of such assignment or  (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved  Fund; provided that the Borrower shall be deemed to have consented to any  such assignment unless it shall object thereto by written notice to the  Administrative Agent within five (5)  Business Days after having received  notice thereof;  (B) the consent of the Administrative Agent (such consent not to  be unreasonably withheld or delayed) shall be required for assignments if  such assignment is to a Person that is not a Lender with a Commitment, an  Affiliate of such Lender or an Approved Fund with respect to such Lender;  and  (C) the consents of each Fronting Bank and the Swing Line  Lender (such consents not to be unreasonably withheld or delayed) shall be  required for any assignment.  





 






14235438v5 27112.00011       111     (iv) Assignment and Assumption.  The parties to each assignment shall  execute and deliver to the Administrative Agent an Assignment and Assumption,  together with a processing and recordation fee of $3,500 for each assignment  (provided, that only one such fee will be payable in connection with simultaneous  assignments to two or more Approved Funds by a Lender), and the assignee, if it is  not a Lender, shall deliver to the Administrative Agent an Administrative  Questionnaire.  (v) No Assignment to Certain Persons.  No such assignment shall be  made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries,  (B) unless such assignment is approved by the Borrower and a Fronting Bank has  agreed to front for such assignee in respect of Several Letters of Credit, to any  Person which is not an NAIC Approved Bank or (C) to any Defaulting Lender or  any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,  would constitute any of the foregoing Persons described in this clause (C).  (vi) No Assignment to Natural Persons.  No such assignment shall be  made to a natural person (or a holding company, investment vehicle or trust for, or  owned and operated for the primary benefit of, a natural person).  Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)  of this Section, from and after the effective date specified in each Assignment and Assumption,  the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned  by such Assignment and Assumption, have the rights and obligations of a Lender under this  Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by  such Assignment and Assumption, be released from its obligations under this Agreement (and, in  the case of an Assignment and Assumption covering all of the assigning Lender’s rights and  obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue  to be entitled to the benefits of Sections 3.04, 3.05 and 10.04 with respect to facts and  circumstances occurring prior to the effective date of such assignment; PROVIDED, HOWEVER,  THAT NO LENDER MAY ASSIGN ANY OBLIGATION UNDER A SEVERAL LETTER OF  CREDIT UNLESS SUCH SEVERAL LETTER OF CREDIT IS EITHER AMENDED OR  RETURNED BY THE BENEFICIARY AND REISSUED BY THE ADMINISTRATIVE  AGENT, REMOVING OR AMENDING, AS THE CASE MAY BE, THE ASSIGNING  LENDER’S PERCENTAGE OBLIGATIONS AND REPLACING OR AMENDING THE SAME  WITH A PERCENTAGE OBLIGATIONS OF THE ELIGIBLE ASSIGNEE.  Upon request, the  Borrower (at its expense) shall execute and deliver a Note in the applicable form to the assignee  Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that  does not comply with this subsection shall be treated for purposes of this Agreement as a sale by  such Lender of a participation in such rights and obligations in accordance with subsection (d) of  this Section.  (c) Register.  The Administrative Agent, acting solely for this purpose as an  agent of the Borrower (and such agency being solely for Tax purposes), shall maintain at  the Administrative Agent’s Office a copy of each Assignment and Assumption delivered  to it (or the equivalent thereof in electronic form) and a register for the recordation of the  names and addresses of the Lenders, and the Commitments of, and principal amounts (and  stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the  





 






14235438v5 27112.00011       112     terms hereof from time to time (the “Register”).  The entries in the Register shall be  conclusive absent manifest error, and the Borrower, the Administrative Agent and the  Lenders shall treat each Person whose name is recorded in the Register pursuant to the  terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall  be available for inspection by the Borrower and any Lender, at any reasonable time and  from time to time upon reasonable prior notice.  (d) Participations.  Any Lender may at any time, without the consent of, or  notice to, the Borrower or the Administrative Agent, sell participations to any Person (other  than a natural person (or a holding company, investment vehicle or trust for, or owned and  operated for the primary benefit of, a natural person), a Defaulting Lender or the Borrower  or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion  of such Lender’s rights and/or obligations under this Agreement (including all or a portion  of its Commitment and/or the Loans (including such Lender’s participation in L/C  Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement  shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties  hereto for the performance of such obligations and (iii) the Loan Parties, the Administrative  Agent, the L/C Administrator, the Fronting Banks, the Swing Line Lender 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, modification or waiver or modification described in  Section 10.01 that directly affects such Participant and could not be affected by a vote of the  Required Lenders.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01  and 3.04 (subject to the requirements and limitations therein, including the requirements under  Section 3.01(g) (it being understood that the documentation required under Section 3.01(g) shall  be delivered to the Lender granting such participation)) to the same extent as if it were a Lender  and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that  such Participant (A) agrees to be subject to the provisions of Section 10.13 as if it were an assignee  under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment  under Sections 3.01 or 3.04, with respect to any participation, than its participating Lender would  have been entitled to receive, except to the extent such entitlement to receive a greater payment  results from a Change in Law that occurs after the Participant acquired the applicable participation.   To the extent permitted by law, each Participant also shall be entitled to the benefits of  Section 10.08 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary  agent of the Borrower, maintain a register on which it enters the name and address of each  Participant and the principal amounts of (and stated interest on) 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  





 






14235438v5 27112.00011       113     any commitments, loans, letters of credit or its other obligations under any Loan Document) to any  Person except to the extent that such disclosure is necessary to establish that such commitment,  loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the  United States Treasury Regulations.  The entries in the Participant Register shall be conclusive  absent manifest error, and such Lender shall treat each Person whose name is recorded in the  Participant Register as the owner of such participation for all purposes of this Agreement  notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent  (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant  Register.  (e) Certain Pledges.  Any Lender may at any time pledge or assign a security  interest in all or any portion of its rights under this Agreement to secure obligations of such  Lender, including without limitation any pledge or assignment to secure obligations to a  Federal Reserve Bank; provided that no such pledge or assignment shall release such  Lender from any of its obligations hereunder or substitute any such pledgee or assignee for  such Lender as a party hereto.  (f) Electronic Execution of Assignments.  The words “execution,” “signed,”  “signature,” and words of like import in any Assignment and Assumption shall be deemed  to include electronic signatures or the keeping of records in electronic form, each of which  shall be of the same legal effect, validity or enforceability as a manually executed signature  or the use of a paper-based recordkeeping system, as the case may be, to the extent and as  provided for in any applicable law, including the Federal Electronic Signatures in Global  and National Commerce Act, the New York State Electronic Signatures and Records Act,  or any other similar state laws based on the Uniform Electronic Transactions Act.  (g) Resignation as L/C Issuer or Swing Line Lender after Assignment.   Notwithstanding anything to the contrary contained herein, if at any time Bank of America  assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of  America may, (i) upon 30 days’ notice to the Loan Parties and the Lenders, resign as L/C  Issuer and/or (ii) upon 30 days’ notice to the Loan Parties, resign as Swing Line Lender.   In the event of any such resignation as L/C Issuer or Swing Line Lender, the Loan Parties  shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line  Lender hereunder; provided, however, that no failure by the Loan Parties to appoint any  such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line  Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it shall retain all the  rights and obligations of the Fronting Bank hereunder with respect to all Letters of Credit  which it fronted and which are outstanding as of the effective date of its resignation as L/C  Issuer and all L/C Obligations with respect thereto (including the right to require the  Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts  pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line Lender, it shall  retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing  Line Loans made by it and outstanding as of the effective date of such resignation,  including the right to require the Lenders to make Base Rate Loans or fund risk  participations in outstanding Swing Line Loans pursuant to Section 2.04(c).  10.07 Confidentiality.  Each of the Administrative Agent, the Lenders, the L/C Issuers  and the L/C Administrator agrees to maintain the confidentiality of the Information (as defined  





 






14235438v5 27112.00011       114     below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’  respective partners, directors, officers, employees, agents, advisors, external auditors and  representatives (it being understood that the Persons to whom such disclosure is made will be  informed of the confidential nature of such Information and instructed to keep such Information  confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction  over it (including any self-regulatory authority, such as the NAIC), (c) to the extent required by  applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party  hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan  Document or any action or proceeding relating to this Agreement or any other Loan Document or  the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing  provisions substantially the same as those of this Section, to (i) any assignee of or Participant in,  or any prospective assignee of or Participant in, any of its rights or obligations under this  Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative  transaction relating to any Loan Party and its obligations, (g) on a confidential basis to the CUSIP  Service Bureau or any similar agency in connection with the application, issuance, publishing and  monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities  provided hereunder, (h) with the consent of the Loan Parties or (i) to the extent such Information  (1) becomes publicly available other than as a result of a breach of this Section or (2) becomes  available to the Administrative Agent, any Lender, any L/C Issuer, the L/C Administrator or any  of their respective Affiliates on a non-confidential basis from a source other than a Loan Party.  In  addition, upon reasonable advance notice to the Borrower, the Administrative Agent and Lenders  may disclose the existence of this Agreement and information about this Agreement to market data  collectors, similar service providers to the lending industry, and service providers to the  Administrative Agent and Lenders, and the Administrative Agent or any of its Affiliates may place  customary “tombstone” advertisements relating hereto in publications (including publications  circulated in electronic form) of its choice at its own expense (which shall be subject to review and  comment by the  Borrower prior to publication).  For purposes of this Section 10.07, “Information” means all information received from any  Loan Party or any Subsidiary relating to a Loan Party or a Subsidiary or any of their respective  businesses, other than any such information that is available to the Administrative Agent or any  Lender on a non-confidential basis prior to disclosure by any Loan Party or any Subsidiary;  provided that, in the case of information received from a Loan Party or a Subsidiary after the date  hereof, such information is clearly identified at the time of delivery as confidential.  Any Person  required to maintain the confidentiality of Information as provided in this Section 10.07 shall be  considered to have complied with its obligation to do so if such Person has exercised the same  degree of care to maintain the confidentiality of such Information as such Person would accord to  its own confidential information.  Each of the Administrative Agent, the Lenders, any L/C Issuer and the L/C Administrator  acknowledges that (a) the Information may include material non-public information concerning a  Loan Party or a Subsidiary, as the case may be, (b) it has developed compliance procedures  regarding the use of material non-public information and (c) it will handle such material non-public  information in accordance with Applicable Law, including United States Federal and state  securities Laws.  





 






14235438v5 27112.00011       115     10.08 Right of Setoff.  If an Event of Default shall have occurred and be continuing, each  Lender, the L/C Administrator, each Fronting Bank and each of their respective Affiliates is hereby  authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to  set off and apply any and all deposits (general or special, time or demand, provisional or final, in  whatever currency) at any time held and other obligations (in whatever currency) at any time owing  by such Lender, the L/C Administrator, such Fronting Bank or any such Affiliate to or for the  credit or the account of any Loan Party against any and all of the obligations of such Loan Party  now or hereafter existing under this Agreement or any other Loan Document to such Lender, the  L/C Administrator or such Fronting Bank, irrespective of whether or not such Lender or L/C  Administrator or Fronting Bank shall have made any demand under this Agreement or any other  Loan Document and although such obligations of such Loan Party may be contingent or unmatured  or are owed to a branch or office of such Lender or the L/C Administrator or the Fronting Bank  different from the branch or office holding such deposit or obligated on such indebtedness.  The  rights of each Lender, the L/C Administrator, each Fronting Bank and their respective Affiliates  under this Section are in addition to other rights and remedies (including other rights of setoff) that  such Lender, the L/C Administrator, such Fronting Bank or their respective Affiliates may have.   Each Lender, the L/C Administrator and each Fronting Bank agrees to notify the Loan Parties 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.  10.09 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in  any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not  exceed Highest Lawful Rate.  If the Administrative Agent or any Lender shall receive interest in  an amount that exceeds the Highest Lawful Rate, the excess interest shall be applied to the  principal of the Loans or, if it exceeds such unpaid principal, refunded to the applicable Loan Party.   In determining whether the interest contracted for, charged, or received by the Administrative  Agent or a Lender exceeds the Highest Lawful Rate, such Person may, to the extent permitted by  Applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium  rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,  prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the  contemplated term of the Obligations hereunder.  10.10 Counterparts; Integration; Effectiveness.    (a) This Agreement may be executed in counterparts (and by different parties  hereto in different counterparts), each of which shall constitute an original, but all of which  when taken together shall constitute a single contract.  This Agreement and the other Loan  Documents constitute the entire contract among the parties relating to the subject matter  hereof and supersede any and all previous agreements and understandings, oral or written,  relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement  shall become effective when it shall have been executed by the Administrative Agent and  when the Administrative Agent shall have received counterparts hereof that, when taken  together, bear the signatures of each of the other parties hereto.  Delivery of an executed  counterpart of a signature page of this Agreement by fax transmission or other electronic  imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed  counterpart of this Agreement.  





 






14235438v5 27112.00011       116     (b) The words “delivery,” “execute,” “execution,” “signed,” “signature,” and  words of like import in any Loan Document or any other document executed in connection  herewith shall be deemed to include electronic signatures, the electronic matching of  assignment terms and contract formations on electronic platforms approved by the  Administrative Agent, or the keeping of records in electronic form, each of which shall be  of the same legal effect, validity or enforceability as a manually executed signature,  physical delivery thereof or the use of a paper-based recordkeeping system, as the case may  be, to the extent and as provided for in any Applicable Law, including the Federal  Electronic Signatures in Global and National Commerce Act, the New York State  Electronic Signatures and Records Act, or any other similar state laws based on the  Uniform Electronic Transactions Act; provided that notwithstanding anything contained  herein to the contrary, the Administrative Agent is under no obligation to agree to accept  electronic signatures in any form or in any format unless expressly agreed to by the  Administrative Agent pursuant to procedures approved by it; provided, further, without  limiting the foregoing, upon the request of the Administrative Agent, any electronic  signature shall be promptly followed by such manually executed counterpart.  For the  avoidance of doubt, the authorization under this paragraph may include, without limitation,  use or acceptance by the Administrative Agent and each of the Lenders of a manually  signed paper Communication which has been converted into electronic form (such as  scanned into PDF format), or an electronically signed Communication converted into  another format, for transmission, delivery and/or retention.  (c) Each Loan Party hereby acknowledges the receipt of a copy of this  Agreement and all other Loan Documents. The Administrative Agent and each Lender  may, on behalf of the Loan Parties, create a microfilm or optical disk or other electronic  image of this Agreement and any or all of the other Loan Documents. The Administrative  Agent and each Lender may store the electronic image of this Agreement and the other  Loan Documents in its electronic form and then destroy the paper original as part of the  Administrative Agent’s and each Lender’s normal business practices, with the electronic  image deemed to be an original and of the same legal effect, validity and enforceability as  the paper originals.  10.11 Survival of Representations and Warranties.  All representations and warranties  made hereunder and in any other Loan Document or other document delivered pursuant hereto or  thereto or in connection herewith or therewith shall survive the execution and delivery hereof and  thereof.  Such representations and warranties have been or will be relied upon by the  Administrative Agent and each Lender, regardless of any investigation made by the Administrative  Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any  Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall  remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.  10.12 Severability.  If any provision of this Agreement or the other Loan Documents is  held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the  remaining provisions of this Agreement and the other Loan Documents shall not be affected or  impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal,  invalid or unenforceable provisions with valid provisions the economic effect of which comes as  





 






14235438v5 27112.00011       117     close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a  provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in  any other jurisdiction.  10.13 Replacement of Lenders.  If any Lender requests compensation under  Section 3.04, or if any Loan Party is required to pay any additional amount to any Lender or any  Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender  is a Defaulting Lender then the Loan Parties may, at their sole expense and effort, upon notice to  such Lender and the Administrative Agent, require such Lender to assign and delegate, without  recourse (in accordance with and subject to the restrictions contained in, and consents required by,  Section 10.06), all of its interests, rights and obligations under this Agreement and the related Loan  Documents to an assignee procured by the Borrower that shall assume such obligations (which  assignee may be another Lender, if a Lender accepts such assignment), provided that:  (a) the Loan Parties shall have paid to the Administrative Agent the assignment  fee specified in Section 10.06(b);  (b) such Lender shall have received payment of an amount equal to the  outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees  and all other amounts payable to it hereunder and under the other Loan Documents  (including any amounts under Section 3.05) from the assignee (to the extent of such  outstanding principal and accrued interest and fees) or the Loan Parties (in the case of all  other amounts);  (c) in the case of any such assignment resulting from a claim for compensation  under Section 3.04 or payments required to be made pursuant to Section 3.01, such  assignment will result in a reduction in such compensation or payments thereafter; and  (d) such assignment does not conflict with Applicable Laws.  A Lender shall not be required to make any such assignment or delegation if, prior thereto,  as a result of a waiver by such Lender or otherwise, the circumstances entitling the Loan Parties  to require such assignment and delegation cease to apply.  Each party hereto agrees that (a) an assignment required pursuant to this Section 10.13 may  be effected pursuant to an Assignment and Assumption executed by the Loan Parties, the  Administrative Agent and the assignee and (b) the Lender required to make such assignment need  not be a party thereto in order for such assignment to be effective and shall be deemed to have  consented to an be bound by the terms thereof; provided that, following the effectiveness of any  such assignment, the other parties to such assignment agree to execute and deliver such documents  necessary to evidence such assignment as reasonably requested by the applicable Lender,  provided, further that any such documents shall be without recourse to or warranty by the parties  thereto.  10.14 Governing Law; Jurisdiction; Etc.  (a) GOVERNING LAW.  THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF  





 






14235438v5 27112.00011       118     ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON,  ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN  DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY  SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY  AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN  ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.  (b) SUBMISSION TO JURISDICTION.  EACH LOAN PARTY  IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS  PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE  STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED  STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND  ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR  PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY  OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF  ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND  UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH  ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW  YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY  APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES  HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR  PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER  JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER  PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN  DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE  AGENT, ANY LENDER, THE L/C ADMINISTRATOR OR ANY FRONTING BANK  MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING  TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY  LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.  (c) WAIVER OF VENUE.  THE BORROWER AND EACH OTHER LOAN  PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST  EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY  NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR  PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY  OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (c)  OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE  DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH  ACTION OR PROCEEDING IN ANY SUCH COURT.  (d) SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR  NOTICES IN SECTION 10.02 (EXCLUDING, HOWEVER, ANY ELECTRONIC  COMMUNICATIONS PERMITTED PURSUANT TO SUCH SECTION).  NOTHING  IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO  SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.  





 






14235438v5 27112.00011       119     10.15 Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT  IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR  INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER  LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY  (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY  HERETO (a) CERTIFIES THAT NO REPRESENTATIVE AGENT OR ATTORNEY OF ANY  OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH  OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE  THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER  PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND  THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION.  10.16 Exceptions to Covenants.  Neither the Borrower nor any Subsidiary shall be  deemed to be permitted to take any action or fail to take any action which is permitted as an  exception to any of the covenants contained herein or which is within the permissible limits of any  of the covenants contained herein if such action or omission would result in the breach of any other  covenant contained herein.  10.17 No Strict Construction.  Each of the parties hereto represents to each other party  hereto that it has discussed this Agreement and the other Loan Documents with its counsel.  The  parties hereto have participated jointly in the negotiation and drafting of this Agreement and the  other Loan Documents.  In the event of an ambiguity or question of intent or interpretation arises,  this Agreement and the other Loan Documents shall be construed as if drafted jointly by the parties  hereto and thereto and no presumption or burden of proof shall arise favoring or disfavoring any  party by virtue of the authorship of any provisions of this Agreement or any other Loan Document.  10.18 USA PATRIOT Act Notice.  Each Lender that is subject to the Act (as hereinafter  defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies  the 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 “Act”), it is required to obtain, verify and record  information that identifies the Loan Parties, which information includes the name and address of  each Loan Party and other information that will allow such Lender or the Administrative Agent,  as applicable, to identify the Borrower in accordance with the Act.  Each Loan Party shall,  promptly following a request by the Administrative Agent or any Lender, provide all  documentation and other information that the Administrative Agent or such Lender requests in  order to comply with its ongoing obligations under applicable “know your customer” and anti- money laundering rules and regulations, including the Act.  10.19 Guaranty.  (a) Guaranty of Payment.  The Borrower hereby absolutely, irrevocably and  unconditionally guarantees prompt, full and complete payment when due, whether at stated  maturity, upon acceleration or otherwise, and at all times thereafter, of all Obligations (the  “Guaranteed Debt”).  The Borrower agrees that if TMK shall fail to pay when due any  Guaranteed Debt, the Borrower will promptly pay the same without notice or demand  whatsoever.  This is a guaranty of payment, not a guaranty of collection.  





 






14235438v5 27112.00011       120     (b) Acceptance of Guaranty; No Setoffs.  The Borrower waives notice of the  acceptance of this Guaranty and of the extension or incurrence of the Guaranteed Debt or  any part thereof.  The Borrower further waives all setoffs and counterclaims and  presentment, protests, notice, filing of claims with a court in the event of receivership,  bankruptcy or reorganization of TMK, demand or action on delinquency in respect of the  Guaranteed Debt or any part thereof, including any right to require the Administrative  Agent, the L/C Administrator, any L/C Issuer, any Fronting Bank or the Lenders  (collectively, the “Guaranteed Parties” and each a “Guaranteed Party”) to sue TMK, any  other guarantor or any other Person obligated with respect to the Guaranteed Debt or any  part thereof, or otherwise to enforce payment thereof against any collateral securing the  Guaranteed Debt or any part thereof.  (c) Nature of Guaranty; Continuing, Absolute and Unconditional.  The  Borrower hereby agrees that, to the fullest extent permitted by Law, its obligations  hereunder shall be continuing, absolute and unconditional under any and all circumstances  and not subject to any reduction, limitation, impairment, termination, defense (other than  indefeasible payment in full), setoff, counterclaim or recoupment whatsoever (all of which  are hereby expressly waived by it to the fullest extent permitted by Law), whether by reason  of any claim of any character whatsoever, including, without limitation, any claim of  waiver, release, surrender, alteration or compromise.  The validity and enforceability of  this Guaranty shall not be impaired or affected by any of the following:  (i) any extension,  modification or renewal of, or indulgence with respect to, or substitution for, the  Guaranteed Debt or any part thereof or any agreement relating thereto at any time; (ii) any  failure or omission to perfect or maintain any lien on, or preserve rights to, any security or  collateral or to enforce any right, power or remedy with respect to the Guaranteed Debt or  any part thereof or any agreement relating thereto, or any collateral securing the  Guaranteed Debt or any part thereof; (iii) any waiver of any right, power or remedy or of  any default with respect to the Guaranteed Debt or any part thereof or any agreement  relating thereto or with respect to any collateral securing the Guaranteed Debt or any part  thereof; (iv) any release, surrender, compromise, settlement, waiver, subordination or  modification, with or without consideration, of any collateral securing the Guaranteed Debt  or any part thereof, any other guaranties with respect to the Guaranteed Debt or any part  thereof, or any other obligations of any person or entity with respect to the Guaranteed  Debt or any part thereof; (v) the enforceability or validity of the Guaranteed Debt or any  part thereof or the genuineness, enforceability or validity of any agreement relating thereto  or with respect to any collateral securing the Guaranteed Debt or any part thereof; (vi) the  application of payments received from any source to the payment of indebtedness other  than the Guaranteed Debt, any part thereof or amounts which are not covered by this  Guaranty even though any Guaranteed Party might lawfully have elected to apply such  payments to any part or all of the Guaranteed Debt or to amounts which are not covered by  this Guaranty; (vii) any change of ownership of TMK or the insolvency, bankruptcy or any  other change in the legal status of TMK; (viii) any change in, or the imposition of, any  Law, decree, or other governmental act which does or might impair, delay or in any way  affect the validity, enforceability or the payment when due of the Guaranteed Debt; (ix) the  failure of TMK to maintain in full force, validity or effect or to obtain or renew when  required all governmental, insurance and other approvals, licenses or consents required in  connection with the Guaranteed Debt or this Guaranty, or to take any other action required  





 






14235438v5 27112.00011       121     in connection with the performance of all obligations pursuant to the Guaranteed Debt or  this Guaranty; (x) the existence of any claim, setoff or other rights which the Borrower  may have at any time against TMK or any other guarantor or any other Person in connection  herewith or with any unrelated transaction; (xi) the Administrative Agent, the L/C  Administrator and the Lenders’ election, in any case or proceeding instituted under  chapter 11 of the United States Bankruptcy Code or any applicable federal, state or foreign  bankruptcy or other similar law, of the application of Section 1111(b)(2) of the United  States Bankruptcy Code or other similar provision under any applicable federal, state or  foreign bankruptcy or other similar Law; (xii) any borrowing, use of Cash Collateral, or  grant of a security interest by TMK, as debtor in possession , under Section 363 or 364 of  the United States Bankruptcy Code or any applicable federal, state or foreign bankruptcy  or other similar Law; (xiii) the disallowance of all or any portion of any of the Guaranteed  Parties’ claims for repayment of the Guaranteed Debt under Section 502 or 506 of the  United States Bankruptcy Code or any applicable federal, state or foreign bankruptcy or  other similar Law; or (xiv) any other fact or circumstance which might otherwise constitute  grounds at Law or equity for the discharge or release of the Borrower from its obligations  hereunder, all whether or not the Borrower shall have had notice or knowledge of any act  or omission referred to in the foregoing clauses (i) through (xiv) of this paragraph.  It is  agreed that the Borrower’s liability hereunder is independent of any other guaranties or  other obligations at any time in effect with respect to the Guaranteed Debt or any part  thereof, and that the Borrower’s liability hereunder may be enforced regardless of the  existence, validity, enforcement or non-enforcement of any such other guaranties or other  obligations or any provision of any Applicable Law purporting to prohibit payment by  TMK of the Guaranteed Debt in the manner agreed upon among the Guaranteed Parties  and TMK.  (d) Dealings with TMK.  Credit may be granted or continued from time to time  by the L/C Administrator or the Lenders to TMK without notice to or authorization from  the Borrower regardless of TMK’s financial or other condition at the time of any such grant  or continuation.  No Guaranteed Party shall have an obligation to disclose or discuss with  the Borrower its assessment of the financial condition of TMK.  (e) Subrogation.  Until the irrevocable payment in full of the Obligations and  termination of all commitments which could give rise to any Obligation, the Borrower shall  have no right of subrogation with respect to the Guaranteed Debt and hereby waives any  right to enforce any remedy which any Guaranteed Party now has or may hereafter have  against TMK, any endorser or any other guarantor of all or any part of the Guaranteed  Debt, and the Borrower hereby waives any benefit of, and any right to participate in, any  security or collateral given to any Guaranteed Party to secure payment of the Guaranteed  Debt or any part thereof or any other liability of TMK to any Guaranteed Party.  Upon such  irrevocable payment and termination, TMK shall indemnify the Borrower for the full  amount of any payment made by the Borrower under this Guaranty and the Borrower shall  be subrogated to the rights of the Person to whom such payment shall have been made to  the extent of such payment.  (f) Collateral.  The Borrower authorizes the Guaranteed Parties to take any  action or exercise any remedy with respect to any non-Cash Collateral from time to time  





 






14235438v5 27112.00011       122     securing the Guaranteed Debt, which the Guaranteed Parties in their sole discretion shall  determine, without notice to the Borrower.  In the event the Guaranteed Parties in their sole  discretion elect to give notice of any action with respect to any non-Cash Collateral  securing the Guaranteed Debt or any part thereof, ten (10) days’ written notice mailed to  the Borrower by ordinary mail at the address set forth in Schedule 10.02 shall be deemed  reasonable notice of any matters contained in such notice.  The Borrower consents and  agrees that no Guaranteed Party shall be under any obligation to marshal any assets in favor  of the Borrower or against or in payment of any or all of the Guaranteed Debt.  (g) Rights to Payments, Etc.  In the event that acceleration of the time for  payment of any of the Guaranteed Debt is stayed upon the insolvency, bankruptcy or  reorganization of TMK, or otherwise, all such amounts shall nonetheless be payable by the  Borrower forthwith upon demand by a Guaranteed Party.  The Borrower further agrees  that, to the extent that TMK makes a payment or payments to any of the Guaranteed Parties  on the Guaranteed Debt, or any Guaranteed Party receives any proceeds of collateral  securing the Guaranteed Debt, which payment or receipt of proceeds or any part thereof is  subsequently invalidated, declared to be fraudulent or preferential, set aside or required to  be returned or repaid to TMK, its estate, trustee, receiver, debtor in possession or any other  party, including, without limitation, the Borrower, under any insolvency or bankruptcy  Law, state or federal Law, common Law or equitable cause, then to the extent of such  payment, return or repayment, the obligation or part thereof which has been paid, reduced  or satisfied by such amount shall be reinstated and continued in full force and effect as of  the date when such initial payment, reduction or satisfaction occurred.  (h) No Waiver.  No delay on the part of any Guaranteed Party in the exercise  of any right, power or remedy shall operate as a waiver thereof, and no single or partial  exercise by any Guaranteed Party of any right, power or remedy shall preclude any further  exercise thereof; nor shall any amendment, supplement, modification or waiver of any of  the terms or provisions of this Guaranty be binding  upon any Guaranteed Party, except as  expressly set forth in writing duly signed and delivered on the L/C Administrator’s and the  Lenders’ behalf by the Administrative Agent.  The failure by any Guaranteed Party at any  time or times hereafter to require strict performance by TMK or the Borrower of any of the  provisions, warranties, terms and conditions contained in any promissory note, security  agreement, agreement, guaranty, instrument or document now or at any time or times  hereafter executed pursuant to the terms of, or in connection with, this Agreement by TMK  or the Borrower and delivered to the Guaranteed Parties shall not waive, affect or diminish  any right of any Guaranteed Party at any time or times hereafter to demand strict  performance thereof, and such right shall not be deemed to have been waived by any act  or knowledge of any Guaranteed Party, their agents, officers or employees, unless such  waiver is contained in an instrument in writing duly signed and delivered on the L/C  Administrator’s, Fronting Banks’ and the Lenders’ behalf by the Administrative Agent.   No waiver by any Guaranteed Party of any default shall operate as a waiver of any other  default or the same default on a future occasion, and no action by any Guaranteed Party  permitted hereunder shall in any way affect or impair any Guaranteed Party’s rights or  powers, or the obligations of the Borrower under this Guaranty.  Any determination by a  court of competent jurisdiction of the amount of any Guaranteed Debt owing by TMK to  any Guaranteed Party shall be conclusive and binding on the Borrower irrespective of  





 






14235438v5 27112.00011       123     whether the Borrower was a party to the suit or action in which such determination was  made.  (i) Setoff.  In addition to and without limitation of any rights, powers or  remedies of the Guaranteed Parties under Applicable Law, any time after maturity of the  Guaranteed Debt, whether by acceleration or otherwise, the Guaranteed Parties may, in  their sole discretion, with notice after the fact to the Borrower and regardless of the  acceptance of any security or collateral for the payment hereof, appropriate and apply  toward the payment of the Guaranteed Debt (i) any indebtedness due to or to become due  from any of the Guaranteed Parties to the Borrower, and (ii) any moneys, credits or other  property belonging to the Borrower (including all account balances, whether provisional  or final and whether or not collected or available) at any time held by or coming into the  possession of any of the Guaranteed Parties or any Lender whether for deposit or otherwise.  (j) Severability.  Wherever possible, each provision of this Section 10.19 shall  be interpreted in such manner as to be effective and valid under Applicable Law, but if any  provision of this Section 10.19 shall be prohibited by or invalid under such Law, such  provision shall be ineffective to the extent of such prohibition or invalidity without  invalidating the remainder of such provision or the remaining provisions of this  Section 10.19.  (k) Miscellaneous.  It is understood that while the amount of the Guaranteed  Debt guaranteed hereby is not limited, if in any action or proceeding involving any state,  federal or foreign bankruptcy, insolvency or other Law affecting the rights of creditors  generally, this Guaranty would be held or determined to be void, invalid or unenforceable  on account of the amount of the aggregate liability under this Guaranty with respect to the  Borrower, then, notwithstanding any other provision of this Guaranty to the contrary, the  aggregate amount of such liability shall, with respect to the Borrower, without any further  action of the Guaranteed Parties, be automatically limited and reduced with respect to the  Borrower to the highest amount which is valid and enforceable as determined in such action  or proceeding.  The obligations of the Borrower under this Section 10.19 shall survive the  termination of this Agreement.  10.20 No Advisory or Fiduciary Responsibility.  In connection with all aspects of each  transaction contemplated hereby (including in connection with any amendment, waiver or other  modification hereof or of any other Loan Document), each Loan Party acknowledges and agrees  that: (i) (A) the arranging and other services regarding this Agreement provided by the  Administrative Agent, the Joint Arrangers and the Lenders are arm’s-length commercial  transactions between the Loan Parties and their respective Affiliates, on the one hand, and the  Administrative Agent, the Joint Arrangers and the Lenders, on the other hand, (B) each Loan Party  has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed  appropriate, and (C) each Loan Party is capable of evaluating, and understands and accepts, the  terms, risks and conditions of the transactions contemplated hereby and by the other Loan  Documents; (ii) (A) the Administrative Agent, each Joint Arranger and each Lender is and has  been acting solely as a principal and, except as expressly agreed in writing by the relevant parties,  has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or  any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent,  any Joint Arranger nor any Lender has any obligation to any Loan Party or any of their respective  





 






14235438v5 27112.00011       124     Affiliates with respect to the transactions contemplated hereby except those obligations expressly  set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Joint  Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of  transactions that involve interests that differ from those of the Loan Parties and their respective  Affiliates, and neither the Administrative Agent, any Joint Arranger nor any Lender has any  obligation to disclose any of such interests to any Loan Party or their respective Affiliates.  To the  fullest extent permitted by law, each Loan Party hereby waives and releases any claims that it may  have against the Administrative Agent, the Joint Arrangers or any Lender with respect to any  breach or alleged breach of agency or fiduciary duty in connection with any aspect of any  transaction contemplated hereby.  10.21 ENTIRE AGREEMENT.  THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY  NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR  SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN  ORAL AGREEMENTS AMONG THE PARTIES.  10.22 Amendment and Restatement; No Novation.  This Agreement constitutes an  amendment and restatement of the Existing Credit Agreement, effective from and after the  Effective Date.  The execution and delivery of this Agreement shall not constitute a novation of  any indebtedness or other obligations owing to the Lenders or the Administrative Agent under the  Existing Credit Agreement based on facts or events occurring or existing prior to the execution  and delivery of this Agreement.  On the Effective Date, the credit facilities described in the  Existing Credit Agreement, shall be amended, supplemented, modified and restated in their  entirety by the facilities described herein, and all loans and other obligations of the Loan Parties  outstanding as of such date under the Existing Credit Agreement, shall be deemed to be loans and  obligations outstanding under the corresponding facilities described herein, without any further  action by any Person, except that the Administrative Agent shall make such transfers of funds as  are necessary in order that the outstanding balance of such Loans, together with any Loans funded  on the Effective Date, reflect the respective Commitment of the Lenders hereunder.  10.23 Acknowledgment 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 the  applicable 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;  





 






14235438v5 27112.00011       125     (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent  undertaking, or a bridge institution that may be issued to it or otherwise conferred  on it, and that such shares or other instruments of ownership will be accepted by it  in lieu of any rights with respect to any such liability under this Agreement or any  other Loan Document; or  (iii) the variation of the terms of such liability in connection with the  exercise of the write-down and conversion powers of the applicable Resolution  Authority.  10.24 Acknowledgement Regarding Any Supported QFCs.  To the extent that the  Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts or any  other agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such  QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the  resolution power of the FDIC under the Federal Deposit Insurance Act and Title II of the Dodd- Frank Wall Street Reform and Consumer Protection Act (together with the regulations  promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported  QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the 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):  (a) In the event a Covered Entity that is party to a Supported QFC (each, a  “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution  Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support  (and any interest and obligation in or under such Supported QFC and such QFC Credit  Support, and any rights in property securing such Supported QFC or such QFC Credit  Support) from such Covered Party will be effective to the same extent as the transfer would  be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC  Credit Support (and any such interest, obligation and rights in property) were governed by  the laws of the United States or a state of the United States. In the event a Covered Party  or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.  Special Resolution Regime, Default Rights under the 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.  (b) As used in this Section 10.24, the following terms have the following  meanings:  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined  under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  





 






14235438v5 27112.00011       126     “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in  accordance with, 12 C.F.R. § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in  accordance with, 12 C.F.R. § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in  accordance with, 12 C.F.R. § 382.2(b).  “Default Right” has the meaning assigned to that term in, and shall be interpreted  in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and  shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).    [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]    





 






 





 






  [Signature Page to Amended and Restated Credit Agreement]  BANK OF AMERICA, N.A., as Administrative  Agent, Swing Line Lender, L/C Administrator and  as a Lender  By:    Name: Brad Hindman   Title: Vice President   





 






  [Signature Page to Amended and Restated Credit Agreement]  U.S. BANK NATIONAL ASSOCIATION, as  Syndication Agent and as a Lender  By:    Name: Glenn Schuermann  Title: Vice President  





 






[Signature Page to Amended and Restated Credit Agreement]  WELLS FARGO BANK, NATIONAL  ASSOCIATION, as Syndication Agent and as a  Lender  By:   Name: Jason Hafener  Title: Managing Director  





 






 





 






 





 






  [Signature Page to Amended and Restated Credit Agreement]  REGIONS BANK, as a Lender  By:   Name: William Soo  Title: Director  





 






 





 






[Signature Page to Amended and Restated Credit Agreement]  COMERICA BANK, as a Lender  By:   Name: John Smithson  Title: Vice President  





 






 





 






 





 






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





 






A-2  Form of Assignment and Assumption  and, except as expressly provided in this Assignment and Assumption, without representation or  warranty by [the][any] Assignor.  1. Assignor[s]: ______________________________       ______________________________   [Assignor [is] [is not] a Defaulting Lender]    2. Assignee[s]: ______________________________       ______________________________   [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]    3. Loan Parties: Globe Life Inc. and TMK Re, Ltd.    4. Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit  Agreement    5. Credit Agreement: Amended and Restated Credit Agreement, dated as of September  30, 2021, among Globe Life Inc., TMK Re, Ltd., the Lenders from time to time party  thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C  Administrator.    





 






A-3  Form of Assignment and Assumption  6. Assigned Interest[s]:          Assignor[s]5        Assignee[s]6      Facility  Assigned7  Aggregate  Amount of  Commitment  for all Lenders8  Amount of  Commitment  Assigned  Percentage  Assigned of  Commitment 9      CUSIP  Number            _________ $___________ $_________ _________%        _________ ___  $___________ _____  $_________ _________%     _________ ___  $___________ _____  $_________ _________%   [7. Trade Date: __________________]10  Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE  AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF  TRANSFER IN THE REGISTER THEREFOR.]                                                       5 List each Assignor, as appropriate.  6 List each Assignee and, if available, its market entity identifier, as appropriate.  7 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being  assigned under this Assignment.  8 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to  take into account any payments or prepayments made between the Trade Date and the Effective Date.  9 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.  10 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to  be determined as of the Trade Date.  





 






A-4  Form of Assignment and Assumption  The terms set forth in this Assignment and Assumption are hereby agreed to:  ASSIGNOR[S]11  [NAME OF ASSIGNOR]    By: _____________________________   Name:  [Type Signatory Name]   Title:  [Type Signatory Title]    [NAME OF ASSIGNOR]    By: _____________________________   Name:  [Type Signatory Name]   Title:  [Type Signatory Title]    ASSIGNEE[S]12  [NAME OF ASSIGNEE]    By: _____________________________   Name:  [Type Signatory Name]   Title:  [Type Signatory Title]      [NAME OF ASSIGNEE]    By: _____________________________   Name:  [Type Signatory Name]   Title:  [Type Signatory Title]                                                    11 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade  (if applicable).  12 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade  (if applicable).  





 






A-5  Form of Assignment and Assumption      [Consented to and]13 Accepted:    BANK OF AMERICA, N.A., as    Administrative Agent    By: _________________________________  Name:  [Type Signatory Name]  Title:  [Type Signatory Title]    [Consented to:]14    [NAME OF RELEVANT PARTY], as [ ]    By: _________________________________  Name:  [Type Signatory Name]  Title:  [Type Signatory Title]                                                    13 To be added only if the consent of the Administrative Agent is required by the terms of the Credit  Agreement.  14 To be added only if the consent of the Loan Parties and/or other parties (e.g. Swing Line Lender, Fronting  Banks) is required by the terms of the Credit Agreement.  





 






A-6  Form of Assignment and Assumption  ANNEX 1 TO ASSIGNMENT AND ASSUMPTION  [___________________]15  STANDARD TERMS AND CONDITIONS FOR   ASSIGNMENT AND ASSUMPTION  1. Representations and Warranties.  1.1. Assignor[s].  [The][Each] Assignor (a) represents and warrants that (i) it is the  legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned  Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power  and authority, and has taken all action necessary, to execute and deliver this Assignment and  Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a  Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties  or representations made in or in connection with the Credit Agreement or any other Loan  Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value  of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower,  any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document  or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any  other Person of any of their respective obligations under any Loan Document.  1.2. Assignee.  (1) [The][Each] Assignee represents and warrants that:  (i) it has full power and authority, and has taken all action  necessary, to execute and deliver this Assignment and Assumption and to  consummate the transactions contemplated hereby and to become a Lender  under the Credit Agreement;  (ii) it meets all the requirements to be an assignee under Section  10.06(b)(iii) and (v) of the Credit Agreement (subject to such consents, if any,  as may be required under Section 10.06(b)(iii) of the Credit Agreement);  (iii) from and after the Effective Date, it shall be bound by the  provisions of the Credit Agreement as a Lender thereunder and, to the extent  of [the][the relevant] Assigned Interest, shall have the obligations of a Lender  thereunder;  (iv) it is sophisticated with respect to decisions to acquire assets  of the type represented by [the][such] Assigned Interest and either it, or the                                                    15 Describe Credit Agreement at option of Administrative Agent.  





 






A-7  Form of Assignment and Assumption  Person exercising discretion in making its decision to acquire [the][such]  Assigned Interest, is experienced in acquiring assets of such type;  (v) it has received a copy of the Credit Agreement, and has  received or has been accorded the opportunity to receive copies of the most  recent financial statements delivered pursuant to Section 6.01 thereof, as  applicable, and such other documents and information as it deems appropriate  to make its own credit analysis and decision to enter into this Assignment and  Assumption and to purchase [the][such] Assigned Interest;  (vi) it has, independently and without reliance upon the  Administrative Agent or any other Lender and based on such documents and  information as it has deemed appropriate, made its own credit analysis and  decision to enter into this Assignment and Assumption and to purchase  [the][such] Assigned Interest; and   (vii) if it is a Foreign Lender, attached hereto is any  documentation required to be delivered by it pursuant to the terms of the  Credit Agreement, duly completed and executed by [the][such] Assignee;   (2) [The][Each] Assignee agrees that:  (i) it will, independently and without reliance upon the  Administrative Agent, [the][any] Assignor or any other Lender, and based on  such documents and information as it shall deem appropriate at the time,  continue to make its own credit decisions in taking or not taking action under  the Loan Documents; and  (ii) it will perform in accordance with their terms all of the  obligations which by the terms of the Loan Documents are required to be  performed by it as a Lender.;  [(3) [The][Each] Assignee (x) represents and warrants, as of the  Effective Date, to, and (y) covenants, from the Effective Date to the date such Person ceases  being a Lender party to the Credit Agreement, for the benefit of, [the][each] Assignor, the  Administrative Agent and the Arranger and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at  least one of the following is and will be true:  (i) [the][such] Assignee is not using “plan assets” (within the  meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA)  of one or more Benefit Plans in connection with the Loans 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  





 






A-8  Form of Assignment and Assumption  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 [the][such] Assignee’s entrance into,  participation in, administration of and performance of the Loans, the  Commitments and the Credit Agreement and acquisition and holding of the  Assigned Interest;  (iii) (A) [the][such] Assignee 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 [the][such] Assignee to enter into,  participate in, administer and perform the Loans, the Commitments and the  Credit Agreement and acquire and hold the Assigned Interest, (C) the entrance  into, participation in, administration of and performance of the Loans, the  Commitments and the Credit Agreement and the acquisition and holding of  the Assigned Interest satisfies the requirements of sub-sections (b) through  (g) of Part I of PTE 84-14 and (D) to the best knowledge of [the][such]  Assignee, the requirements of subsection (a) of Part I of PTE 84-14 are  satisfied with respect to [the][such] Assignee’s entrance into, participation in,  administration of and performance of the Loans, the Commitments and the  Credit Agreement and acquisition and holding of the Assigned Interest; or  (iv) such other representation, warranty and covenant as may be  agreed in writing between the Assignor, in its sole discretion, the  Administrative Agent, in its sole discretion, and [the][such] Assignee.16  (4) In addition, unless either (1) sub-clause (i) in the immediately preceding  clause (3) is true with respect to [the][an] Assignee or (2) [the][such] Assignee has  provided another representation, warranty and covenant in accordance with sub-clause (iv)  in the immediately preceding clause (3), [the][such] Assignee further (x) represents and  warrants, as of the Effective Date, to, and (y) covenants, from the Effective Date to the date  such Person ceases being a Lender party to the Credit Agreement, for the benefit of,  [the][each] Assignor, the Administrative Agent and the Arranger and their respective  Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, that  none of [the][any] Assignor, the Administrative Agent or the Arranger or any of their  respective Affiliates is a fiduciary with respect to the assets of [the][such] Assignee  involved in the Loans, the Commitments or the Credit Agreement (including in connection                                                    16 This “escape-hatch” provision is expected to be used only in rare instances where a party cannot comply  with the other representations and covenants as drafted or in the event substantive ERISA provisions are later amended  or modified.  





 






A-9  Form of Assignment and Assumption  with the reservation or exercise of any rights by the Administrative Agent under the Credit  Agreement, any Loan Document or any documents related thereto).]17  2. Payments.  From and after the Effective Date, the Administrative Agent shall  make all payments in respect of [the][each] Assigned Interest (including payments of principal,  interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued  to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have  accrued from and after the Effective Date.  Notwithstanding the foregoing, the Administrative  Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and  after the Effective Date to [the][the relevant] Assignee.  3. General Provisions.  This Assignment and Assumption shall be binding upon,  and inure to the benefit of, the parties hereto and their respective successors and assigns.  This  Assignment and Assumption may be executed in any number of counterparts, which together shall  constitute one instrument.  Delivery of an executed counterpart of a signature page of this  Assignment and Assumption by telecopy shall be effective as delivery of a manually executed  counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be  governed by, and construed in accordance with, the law of the State of New York.                                                      17 If the Credit Agreement contains the ERISA-related Lender representations, bracketed text is not required  to be included in the form of Assignment and Assumption Agreement.  However, if new lenders are entering the Credit  Agreement pursuant to an amendment, amendment and restatement, incremental facility or otherwise, and the Credit  Agreement does not contain the ERISA-related Lender representation set forth in Section 9.11 of the form Credit  Agreement, the form of Assignment and Assumption Agreement should be modified to include the bracketed  language.  





 






B-1  Form of Compliance Certificate  EXHIBIT B  FORM OF COMPLIANCE CERTIFICATE        Check for distribution to PUBLIC and Private side Lenders1      Financial Statement Date:              ,      To: Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Amended and Restated Credit Agreement, dated as of  September 30, 2021 (as amended, restated, extended, supplemented or otherwise modified in  writing from time to time, the “Agreement;” the terms defined therein being used herein as therein  defined), among Globe Life Inc., a Delaware corporation (the “Borrower”), TMK Re, Ltd., the  Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent,  Swing Line Lender and L/C Administrator.  The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is  the         of the Borrower, and that, as such, he/she is  authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the  Borrower, and that:  [Use following paragraph 1 for fiscal year-end financial statements]  1. The Borrower has delivered the year-end audited financial statements required by  Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as of the above date,  together with the report and opinion of an independent certified public accountant required by such  section.  [Use following paragraph 1 for fiscal quarter-end financial statements]  1. The Borrower has delivered the unaudited financial statements required by Section  6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date.  Such  financial statements fairly present the financial condition, results of operations and cash flows of                                                    1  If this is not checked, this certificate will only be posted to Private side Lenders.  





 






B-2  Form of Compliance Certificate  the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period,  subject only to normal year-end audit adjustments and the absence of footnotes.  2. The undersigned has reviewed and is familiar with the terms of the Agreement and  has made, or has caused to be made under his/her supervision, a detailed review of the transactions  and condition (financial or otherwise) of the Borrower during the accounting period covered by  such financial statements.  3. A review of the activities of the Borrower during such fiscal period has been made  under the supervision of the undersigned with a view to determining whether during such fiscal  period the Borrower performed and observed all its Obligations under the Loan Documents, and   [select one:]  [to the best knowledge of the undersigned, during such fiscal period the Borrower  performed and observed each covenant and condition of the Loan Documents applicable to  it, and no Default has occurred and is continuing.]  --or--  [to the best knowledge of the undersigned, during such fiscal period the following  covenants or conditions have not been performed or observed and the following is a list  of each such Default and its nature and status:]  4. The representations and warranties of the Borrower contained in Article V of the  Agreement (excluding Section 5.05(c)), and any representations and warranties of any Loan Party  that are contained in any document furnished at any time under or in connection with the Loan  Documents, are true and correct on and as of the date hereof, except to the extent that such  representations and warranties specifically refer to an earlier date, in which case they are true and  correct as of such earlier date, and except that for purposes of this Compliance Certificate, the  representations and warranties contained in subsections (a) and (b) of Section 5.05 of the  Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections  (a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in connection  with which this Compliance Certificate is delivered.  5. The financial covenant analyses and information set forth on Schedule 1 attached  hereto are true and accurate on and as of the date of this Certificate.     





 






B-3  Form of Compliance Certificate  IN WITNESS WHEREOF, the undersigned has executed this Certificate as of     ,   .  GLOBE LIFE INC.      By:     Name:  [Type Signatory Name]  Title:  [Type Signatory Title]  





 






B-4  Form of Compliance Certificate  For the Quarter/Year ended ___________________(“Statement Date”)  SCHEDULE 1  to the Compliance Certificate  ($ in 000’s)  I. Section 7.07(a) – Consolidated Net Worth.  A. Consolidated common and preferred shareholders’ equity  determined in accordance with GAAP at Statement Date $   B. “Accumulated Other Comprehensive Income (Loss)” shown  on a consolidated balance sheet of the Borrower and its  Subsidiaries at Statement Date $   C. Actual Consolidated Net Worth at Statement Date (Lines I.A  [+/-] I.B): $   D. Amount specified in Section 7.07(a)(i): $ 4,000,000,000   E. 50% of Net Proceeds from issuance and sale of Equity  Interests after June 30, 2021 (other than issuances of  securities pursuant to any employee equity compensation  plan or agreement or other employee equity compensation  arrangement, any employee benefit plan or agreement or  other employee benefit arrangement or any nonemployee  director equity compensation plan or agreement or other non- employee director equity compensation arrangement or  pursuant to the exercise or vesting of any employee or  director stock options, restricted stock or restricted stock  units, warrants or other equity awards): $   F. Minimum required Consolidated Net Worth   (Lines I.D + I.E):  $   G. Excess (deficient) for covenant compliance (Line I.C –  I.F):    $     II. Section 7.07(b) – Consolidated Indebtedness to Consolidated  Capitalization  A. Indebtedness determined in accordance with GAAP at Statement  Date:     $   B. Subordinated Debt, the aggregate principal amount of which does  not exceed 15% of Total Capitalization at Statement Date $   C. Borrowings made by any Insurance Subsidiary from any FHLB  to the extent such borrowings are of the type customarily  excluded from financial leverage by both S&P and Moody’s in  their evaluation of such Insurance Subsidiary or similarly  





 






B-5  Form of Compliance Certificate  positioned person at Statement Date $   D. Consolidated Indebtedness at Statement Date (Line II.A – Line  II.B – Line II.C):   $   E. Consolidated Capitalization at Statement Date   1. Consolidated Net Worth (Line I.C above) $    2. Consolidated Indebtedness (Line II.D above) $    3. Subordinated Debt, the aggregate principal amount of  which does not exceed 15% of Total Capitalization at Statement  Date     $    4. Consolidated Capitalization (Line II.E.1 + Line II.E.2 +  Line II.E.3):   $   F. Consolidated Indebtedness to Consolidated Capitalization (Line  II.D   Line II.E.4):     to 1.00  Maximum permitted:     0.40 to 1.00       





 






C-1   Form of Loan Notice  EXHIBIT C    FORM OF LOAN NOTICE    Date:  ___________, _____1  To: Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Amended and Restated Credit Agreement, dated as of  September 30, 2021 (as amended, restated, extended, supplemented or otherwise modified in  writing from time to time, the “Agreement;” the terms defined therein being used herein as therein  defined), among Globe Life Inc., a Delaware corporation (the “Borrower”), TMK Re, Ltd., the  Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent,  Swing Line Lender and L/C Administrator.  The undersigned hereby requests (select one)2:    Indicate:  Borrowing   or  Conversion  or  Continuation  Indicate:   Applicable  Borrower  Name  Indicate:  Requested  Amount  Indicate:    Base Rate  Loan   or   Eurodollar  Rate Loan  For Eurodollar   Rate Loans   Indicate:    Interest Period (e.g.  1, 3 or 6 month  interest period)                        The Revolving Borrowings requested herein comply with the provisos to the first sentence  of Section 2.01 of the Agreement.                                                    1 Note to Borrower.  All requests submitted under a single Loan Notice must be effective on the same date.  If multiple effective  dates are needed, multiple Loan Notices will need to be prepared and signed.  2 Note to Borrower.  For multiple borrowings, conversions and/or continuations for a particular facility, fill out a new row for each  borrowing/conversion and/or continuation.   





 






C-1   Form of Loan Notice  GLOBE LIFE INC.      By:     Name:  [Type Signatory Name]  Title:  [Type Signatory Title]      





 






D-1  Form of Revolving Note  EXHIBIT D    FORM OF REVOLVING NOTE  $_______________ _____________, ____  FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to  _____________________ or registered assigns (the “Lender”), in accordance with the provisions  of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time  made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement,  dated as of September 30, 2021 (as amended, restated, extended, supplemented or otherwise  modified in writing from time to time, the “Agreement;” the terms defined therein being used  herein as therein defined), among the Borrower, TMK Re, Ltd., the Lenders from time to time  party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C  Administrator.  The Borrower promises to pay interest on the unpaid principal amount of each Revolving  Loan from the date of such Revolving Loan until such principal amount is paid in full, at such  interest rates and at such times as provided in the Agreement.  All payments of principal and  interest shall be made to the Administrative Agent for the account of the Lender in Dollars in  immediately available funds at the Administrative Agent’s Office.  If any amount is not paid in  full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from  the due date thereof until the date of actual payment (and before as well as after judgment)  computed at the per annum rate set forth in the Agreement.  This Note is one of the Revolving Notes referred to in the Agreement, is entitled to the  benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided  therein.  Upon the occurrence and continuation of one or more of the Events of Default specified  in the Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may  be declared to be, immediately due and payable all as provided in the Agreement.  Revolving  Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained  by the Lender in the ordinary course of business. The Lender may also attach schedules to this  Revolving Note and endorse thereon the date, amount and maturity of its Revolving Loans and  payments with respect thereto.  The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,  protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving  Note.  





 






D-2  Form of Revolving Note  THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN  ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  GLOBE LIFE INC.      By:     Name:  [Type Signatory Name]  Title:  [Type Signatory Title]  





 






D-3  Form of Revolving Note  LOANS AND PAYMENTS WITH RESPECT THERETO    Date  Type of  Loan  Made  Amount  of Loan  Made  End of  Interest  Period  Amount  of  Principal  or  Interest  Paid This  Date  Outstandin g Principal  Balance  This Date  Notation  Made By                                                                                                                                                                                                                                                                                





 






E - 4  Form of Several Letter of Credit  EXHIBIT E  FORM OF SEVERAL LETTER OF CREDIT  FOR INTERNAL IDENTIFICATION PURPOSES ONLY  (Does not Affect Terms of Letter of Credit or Letter of Credit Bank’s Obligations Thereunder)  Issue Date: ______________ , 20__  Expiry Date: ______________ , 20__  L/C No. [____________]  Amount: $ _____________ ( ) 21  Applicant: [ ____________ ] 22  [ ____________ ]  [ ____________ ] Date: ________    IRREVOCABLE CLEAN ISSUE DATE _____________   LETTER OF CREDIT NO. ______  To :  [ BENEFIC IARY] 23    [ __________________ ]  [ __________________ ]  [ __________________ ]    We, the issuing banks listed below (hereinafter referred to individually as a “Letter  of Credit Bank,” and collectively, the “Letter of Credit Banks”), hereby establish this clean,  irrevocable and unconditional Letter of Credit in your favor as Beneficiary for drawing up to an  aggregate amount of U.S. $____________ (the “Letter of Credit Commitment”) effective  immediately. This Letter of Credit shall expire with the close of business of the Letter of Credit  Agent (defined below) on _____________. Except when the Letter of Credit Commitment is   increased or amended to reflect a change in Commitment Share (defined below) or Letter of Credit  Bank as set forth in the last paragraph hereof, this Letter of Credit cannot be modified or revoked  without the consent of the Beneficiary.  [The term “Beneficiary” includes any successor by operation of law of the named  Beneficiary including, without limitation, any such liquidator, rehabilitator, receiver or  conservator. Drawings by any liquidator, rehabilitator, receiver or conservator shall be for the                                                    21 Insert initial amount of the Letter of Credit.  22 Insert name of party for whom Letter of Credit will be issued.  23 Insert full name and address of the Beneficiary.  





 






E - 5  Form of Several Letter of Credit  benefit of all the Beneficiary’s policyholders.]24 The term “Business Day” means a day which is  not a Saturday, Sunday, or any other day on which banking institutions in [Charlotte, North  Carolina] or the city in which the payment office of the Letter of Credit Agent is located are  required by law to be closed.  Bank of America, N.A., has been appointed by the Letter of Credit Banks, has been  granted the authority by the Letter of Credit Banks to act as, and has been irrevocably granted a  power of attorney by the Letter of Credit Banks to act as agent (in such capacity, the “Letter of  Credit Agent”) for the Letter of Credit Banks obligated under this Letter of Credit. The Letter of  Credit Agent has full power of attorney from such Letter of Credit Banks to act on their behalf  hereunder to (i) execute and deliver this Letter of Credit, (ii) receive drafts, other demands for  payment and other documents presented by the Beneficiary hereunder, (iii) determine whether  such drafts, demands and documents are in compliance with the terms of this Letter of Credit, and  (iv) notify the Letter of Credit Banks and the account party that a valid drawing has been made  and the date that the related payment under this Letter of Credit is to be made; provided, however,  that the Letter of Credit Agent, in its capacity as such, shall have no obligation or liability for any  payment under this Letter of Credit (other than payment to the Beneficiary of such funds as have  been made available to it by the Letter of Credit Banks pursuant to the Beneficiary’s draw).  The maximum liability of each Letter of Credit Bank with respect to any demand  for payment made hereunder shall be its commitment share of the amount of such demand for  payment, as set forth on Schedule I attached hereto (the “Commitment Share”).  The obligations of the Letter of Credit Banks hereunder are several and not joint,  and no Letter of Credit Bank shall be responsible or otherwise liable for the failure of any other  Letter of Credit Bank to perform its obligations hereunder, nor shall the failure of any Letter of  Credit Bank to perform its obligations under this Letter of Credit relieve any other Letter of Credit  Bank of its obligations hereunder.  Subject to the further provisions of this Letter of Credit, on or before the expiration  date hereof [or any automatically extended expiry date]25, demands for payment may be made by  the Beneficiary by presentation on a Business Day to the Letter of Credit Agent of a sight draft drawn  on the Letter of Credit Agent indicating the Letter of Credit No. ________, for all or any part of  this Letter of Credit at the Letter of Credit Agent’s office located at  _________________________________________. Facsimile of the draw documents is  acceptable to [______________]26. If presentation is made by fax prompt phone notification must                                                    24 Insert if Letter of Credit is being issued to back a reinsurance policy and such language is required by the applicable  insurance regulator. Additional changes to the letter of credit to reflect regulatory requirements will be inserted if necessary.  25 Delete if not inserting automatic extension provision.  26 Bank of America to provide.  





 






E - 6  Form of Several Letter of Credit  be given to [______________]27. The fax presentation shall be deemed the original presentation.  In the event of a full or final drawing the original Letter of Credit must be returned to us by  overnight courier at time of fax presentation.  We, the Letter of Credit Banks listed herein, hereby severally undertake to promptly  honor all of a Beneficiary’s demands for payment hereunder upon delivery of the sight draft as  specified to the Letter of Credit Agent’s aforesaid office.  Except as expressly stated herein, this undertaking is not subject to any agreement,  requirement or qualification. The obligations of each Letter of Credit Bank under this Letter of  Credit is the individual obligation of such Letter of Credit Bank and is in no way contingent upon  reimbursement with respect thereto, or upon its ability to perfect any lien, security interest or any  other reimbursement.  Upon payment to you by a Letter of Credit Bank of its Commitment Share of the  drawing amount specified in a demand presented hereunder, such Letter of Credit Bank shall be  fully discharged of its obligation under this Letter of Credit to the extent of its Commitment Share  of such demand and such Letter of Credit Bank shall not thereafter be obligated to make any further  payments under this Letter of Credit in respect of such demand.  [This Letter of Credit shall be deemed automatically extended without amendment  for one year from the expiration date hereof or any future expiration date unless at least thirty days  prior to such expiration date, the Letter of Credit Agent notifies you by registered mail or overnight  courier service that this Letter of Credit will not be extended for any such additional period.]28  This Letter of Credit is subject to and governed by the law(s) of the State of  [New York] [Nebraska], and the International Standby Practices 98 (ISP98) (International  Chamber of Commerce Publication No. 590). In the event of any conflict, the laws of the  State of [New York] [Nebraska] will control.  Except to the extent the amount of the Letter of Credit Commitment may be  increased, this Letter of Credit cannot be modified or revoked without the Beneficiary’s written  consent, provided that this Letter of Credit may be amended to delete a Letter of Credit Bank or  add a Letter of Credit Bank or change Commitment Shares, in each case without the Beneficiary’s  consent, by an amendment signed only by the Letter of Credit Agent so long as such amendment  does not decrease the amount of the Letter of Credit Commitment and any Letter of Credit Bank  added shall be approved by the Securities Valuation Office of the National Association of  Insurance Commissioners.  Very truly yours,                                                    27 Bank of America to provide.   28 Insert if auto-extension is applicable.  





 






E - 7  Form of Several Letter of Credit  BANK OF AMERICA, N.A., as Letter of Credit  Agent      By:     Name:  [Type Signatory Name]  Title:  [Type Signatory Title]  





 






E - 8  Form of Several Letter of Credit  Schedule I  Letter of Credit Bank Information with Respect to Letter of Credit No. __________   LETTER OF CREDIT  BANK  COMMITMENT SHARE MAXIMUM SHARE OF  LETTER OF CREDIT  COMMITMENT  [Lender] _______________% U.S.$_____________  [Lender] _______________% U.S.$_____________  [Lender] _______________% U.S.$_____________    TOTAL 100% U.S. $_____________  





 






F - 9  Form of Swing Line Loan Notice  EXHIBIT F  FORM OF SWING LINE LOAN NOTICE  Date:  ____ ,  To: Bank of America, N.A., as Swing Line Lender   Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Amended and Restated Credit Agreement, dated as of  September 30, 2021 (as amended, restated, extended, supplemented or otherwise modified in  writing from time to time, the “Agreement;” the terms defined therein being used herein as therein  defined), among Globe Life Inc., a Delaware corporation, (the “Borrower”), TMK Re, Ltd., the  Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent,  Swing Line Lender and L/C Administrator.  The undersigned hereby requests a Swing Line Loan:  1. On ___________________________ (a Business Day).  2. In the amount of $_________________.  The Swing Line Borrowing requested herein complies with the requirements of the  provisos to the first sentence of Section 2.04(a) of the Agreement.  GLOBE LIFE INC.      By:     Name:  [Type Signatory Name]  Title:  [Type Signatory Title]      





 






G - 1  Form of Swing Line Note  EXHIBIT G  FORM OF SWING LINE NOTE  $35,000,000.00 _____________, ____  FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to  BANK OF AMERICA, N.A. (“Swing Line Lender”) or registered assigns (the “Lender”), in  accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of  each Swing Line Loan from time to time made by the Swing Line Lender to each Borrower under  that certain Amended and Restated Credit Agreement, dated as of September 30, 2021 (as  amended, restated, extended, supplemented or otherwise modified in writing from time to time,  the “Agreement;” the terms defined therein being used herein as therein defined), among the  Borrower, TMK Re, Ltd., the Lenders from time to time party thereto, and Bank of America, N.A.,  as Administrative Agent, Swing Line Lender and L/C Administrator.  The Borrower promises to pay interest on the unpaid principal amount of each Swing Line  Loan from the date of such Swing Line Loan until such principal amount is paid in full, at such  interest rates and at such times as provided in the Agreement. All payments of principal and interest  shall be made to the Administrative Agent for the account of the Swing Line Lender in Dollars in  immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full  when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the  due date thereof until the date of actual payment (and before as well as after judgment) computed  at the per annum rate set forth in the Agreement.  This Note is the Swing Line Note referred to in the Agreement, is entitled to the benefits  thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  Upon the occurrence and continuation of one or more of the Events of Default specified in the  Agreement, all amounts then remaining unpaid on this Swing Line Note shall become, or may be  declared to be, immediately due and payable all as provided in the Agreement. Swing Line Loans  made by the Swing Line Lender shall be evidenced by one or more loan accounts or records  maintained by the Swing Line Lender in the ordinary course of business. The Swing Line Lender  may also attach schedules to this Swing Line Note and endorse thereon the date, amount and  maturity of the Swing Line Loans and payments with respect thereto.  The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,  acceleration, and notice of acceleration, protest and demand and notice of protest, demand,  dishonor and non-payment of this Swing Line Note.  





 






G - 2  Form of Swing Line Note  THIS SWING LINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN  ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.  GLOBE LIFE INC.      By:     Name:  [Type Signatory Name]  Title:  [Type Signatory Title]     





 






G - 3  Form of Swing Line Note  SWING LINE LOANS AND PAYMENTS WITH RESPECT THERETO  Date   Amount of  Loan Made  Amount of  Principal or  Interest Paid  This Date  Outstanding  Principal  Balance This  Date  Notation  Made By                                                                                                                                                                                                          





 






H - 1  Form of Borrowing Base Certificate  EXHIBIT H  FORM OF BORROWING BASE CERTIFICATE  To: Bank of America, N.A.,   as Administrative Agent  Re: Globe Life Inc.   Ladies and Gentlemen:  Reference is made to that certain Amended and Restated Credit Agreement, dated as of  September 30, 2021 (as amended, restated, extended, supplemented or otherwise modified in  writing from time to time, the “Agreement;” the terms defined therein being used herein as therein  defined), among Globe Life Inc., a Delaware corporation (the “Borrower”), TMK Re. Ltd., the  Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent,  Swing Line Lender and L/C Administrator. This Certificate, together with supporting calculations  attached hereto set forth in reasonable detail, is delivered to you pursuant to the terms of the  Agreement.  We hereby certify and warrant to the Administrative Agent, the L/C Administrator, the  Fronting Banks and the Lenders that at the close of business on __________, ___ (the “Borrowing  Base Calculation Date”), the Borrowing Base for the undersigned was $____________ and the  amount of the Secured L/C Obligations was $_____________.  We hereby further certify and warrant to the Administrative Agent, the L/C Administrator,  the Fronting Banks and the Lenders that the information and computations contained herein are  true and correct in all material respects as of the Borrowing Base Calculation Date.  IN WITNESS WHEREOF, the Borrower has caused this Certificate to be executed and  delivered by a Responsible Officer this __ day of ____________, ____.  GLOBE LIFE INC.      By:     Name:  [Type Signatory Name]  Title:  [Type Signatory Title]  





 






H - 2  Form of Borrowing Base Certificate  SCHEDULE I TO BORROWING BASE CERTIFICATE  DATED AS OF: ____________, _____  I. BORROWER’S BORROWING BASE CALCULATION  [FORM TO BE PROVIDED BY BORROWER]  





 






H - 3  Form of Borrowing Base Certificate  SCHEDULE II TO BORROWING BASE CERTIFICATE  DATED AS OF ____________, _____  [Attach list of Eligible Collateral by category (including rating)]  





 






  I  Form of U.S. Tax Compliance Certificate  EXHIBIT I      FORM OF  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Amended and Restated Credit Agreement, dated  as of September 30, 2021 (as amended, supplemented or otherwise modified from time to time,  the “Credit Agreement”) among Globe Life Inc., a Delaware corporation (the “Borrower”), TMK  Re, Ltd., the Lenders from time to time party thereto, and Bank of America, N.A., as  Administrative Agent, Swing Line Lender and L/C Administrator.  Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the  undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as  well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate,  (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten  percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and  (iv) it is not a controlled foreign corporation related to the Borrower as described in Section  881(c)(3)(C) of the Code.  The undersigned has furnished the Administrative Agent and the Borrower with a  certificate of its non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable).  By  executing this certificate, the undersigned agrees that (1) if the information provided on this  certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative  Agent, and (2) the undersigned shall have at all times furnished the Borrower and the  Administrative Agent with a properly completed and currently effective certificate in either the  calendar year in which each payment is to be made to the undersigned, or in either of the two  calendar years preceding such payments.   Unless otherwise defined herein, terms defined in the Credit Agreement and used  herein shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]    By:  _______________________  Name:  [Type Signatory Name]  Title:  [Type Signatory Title]  Date: ________ __, 20[  ]    





 






  I  Form of U.S. Tax Compliance Certificate  FORM OF  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax  Purposes)    Reference is hereby made to the Amended and Restated Credit Agreement, dated  as of September 30, 2021 (as amended, supplemented or otherwise modified from time to time,  the “Credit Agreement”) among Globe Life Inc., a Delaware corporation (the “Borrower”), TMK  Re, Ltd., the Lenders from time to time party thereto, and Bank of America, N.A., as  Administrative Agent, Swing Line Lender and L/C Administrator.  Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the  undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation  in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section  881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the  meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation  related to the Borrower as described in Section 881(c)(3)(C) of the Code.  The undersigned has furnished its participating Lender with a certificate of its non- U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable).  By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes,  the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall  have at all times furnished such Lender with a properly completed and currently effective  certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used  herein shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]    By:  _______________________  Name:  [Type Signatory Name]  Title:  [Type Signatory Title]  Date: ________ __, 20[  ]  





 






  I  U.S. Tax Compliance Certificate  FORM OF  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Amended and Restated Credit Agreement, dated  as of September 30, 2021 (as amended, supplemented or otherwise modified from time to time,  the “Credit Agreement”) among Globe Life Inc., a Delaware corporation (the “Borrower”), TMK  Re, Ltd., the Lenders from time to time party thereto, and Bank of America, N.A., as  Administrative Agent, Swing Line Lender and L/C Administrator.    Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the  undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of  which it is providing this certificate, (ii) its direct or indirect partners/members are the sole  beneficial owners of such participation, (iii) with respect such participation, neither the  undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant  to a loan agreement entered into in the ordinary course of its trade or business within the meaning  of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten  percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and  (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the  Borrower as described in Section 881(c)(3)(C) of the Code.   The undersigned has furnished its participating Lender with IRS Form W-8IMY  accompanied by one of the following forms from each of its partners/members that is claiming the  portfolio interest exemption: (i) an IRS Form W-8BEN-E (or W-8BEN, as applicable) or (ii) an  IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN, as applicable) from  each of such partner’s/member’s beneficial owners that is claiming the portfolio interest  exemption.  By executing this certificate, the undersigned agrees that (1) if the information  provided on this certificate changes, the undersigned shall promptly so inform such Lender and  (2) the undersigned shall have at all times furnished such Lender with a properly completed and  currently effective certificate in either the calendar year in which each payment is to be made to  the undersigned, or in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used  herein shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]    By:  _______________________  Name:  [Type Signatory Name]  Title:  [Type Signatory Title]  Date: ________ __, 20[  ]  





 






  I  U.S. Tax Compliance Certificate  FORM OF  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Amended and Restated Credit Agreement, dated  as of September 30, 2021 (as amended, supplemented or otherwise modified from time to time,  the “Credit Agreement”) among Globe Life Inc., a Delaware corporation (the “Borrower”), TMK  Re, Ltd., the Lenders from time to time party thereto, and Bank of America, N.A., as  Administrative Agent, Swing Line Lender and L/C Administrator.  Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the  undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any  Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct  or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s)  evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit  Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect  partners/members is a bank extending credit pursuant to a loan agreement entered into in the  ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,  (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower  within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect  partners/members is a controlled foreign corporation related to the Borrower as described in  Section 881(c)(3)(C) of the Code.  The undersigned has furnished the Administrative Agent and the Borrower with  IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members  that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E (or W-8BEN, as  applicable) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN,  as applicable) from each of such partner’s/member’s beneficial owners that is claiming the  portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the  information provided on this certificate changes, the undersigned shall promptly so inform the  Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished  the Borrower and the Administrative Agent with a properly completed and currently effective  certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used  herein shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]  By:  _______________________  Name:  [Type Signatory Name]  Title:  [Type Signatory Title]  Date: ________ __, 20[  ]