Credit Agreement



 Exhibit 10.2 

EXECUTION COPY 

CREDIT AGREEMENT 

Dated as of February 27, 2007 

among 
 THE
FRESH MARKET, INC., 
 as Borrower, 

BANK OF AMERICA, N.A., 

as Administrative Agent, Swing Line Lender 

and 
 L/C Issuer,

 BB&T CORPORATION, 

as Syndication Agent, 

BMO CAPITAL MARKETS, 

as Documentation Agent 

and 
 The Other
Lenders Party Hereto 







 TABLE OF CONTENTS 

 

					
	 	  	 	  	Page
			
	ARTICLE I	  	    DEFINITIONS AND ACCOUNTING TERMS	  	1
			
	 1.01
	  	Defined Terms	  	1
			
	 1.02
	  	Other Interpretive Provisions	  	18
			
	 1.03
	  	Accounting Terms	  	19
			
	 1.04
	  	Rounding	  	19
			
	 1.05
	  	Times of Day	  	19
			
	 1.06
	  	Letter of Credit Amounts	  	19
			
	ARTICLE II	  	    THE COMMITMENTS AND CREDIT EXTENSIONS	  	20
			
	 2.01
	  	Committed Loans	  	20
			
	 2.02
	  	Borrowings, Conversions and Continuations of Committed Loans	  	20
			
	 2.03
	  	Letters of Credit	  	21
			
	 2.04
	  	Swing Line Loans	  	29
			
	 2.05
	  	Prepayments	  	32
			
	 2.06
	  	Termination or Reduction of Commitments	  	33
			
	 2.07
	  	Repayment of Loans	  	33
			
	 2.08
	  	Interest	  	33
			
	 2.09
	  	Fees	  	34
			
	 2.10
	  	Computation of Interest and Fees	  	34
			
	 2.11
	  	Evidence of Debt	  	35
			
	 2.12
	  	Payments Generally; Agent’s Clawback	  	35
			
	 2.13
	  	Sharing of Payments	  	37
			
	 2.14
	  	Increase in Commitments	  	37
			
	ARTICLE III	  	    TAXES, YIELD PROTECTION AND ILLEGALITY	  	39
			
	 3.01
	  	Taxes	  	39
			
	 3.02
	  	Illegality	  	40
			
	 3.03
	  	Inability to Determine Rates	  	40
			
	 3.04
	  	Increased Costs	  	40
			
	 3.05
	  	Compensation for Losses	  	42
			
	 3.06
	  	Mitigation Obligations	  	42
			
	 3.07
	  	Survival	  	43

  

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 TABLE OF CONTENTS 

(continued) 
  


					
	 	  	 	  	Page
			
	ARTICLE IV	  	    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	  	43
			
	 4.01
	  	Conditions of Initial Credit Extension	  	43
			
	 4.02
	  	Conditions to all Credit Extensions	  	44
			
	 4.03
	  	Conditions to New Company Grocery Site Loans	  	45
			
	ARTICLE V	  	    REPRESENTATIONS AND WARRANTIES	  	45
			
	 5.01
	  	Existence, Qualification and Power; Compliance with Laws	  	45
			
	 5.02
	  	Authorization; No Contravention	  	46
			
	 5.03
	  	Governmental Authorization	  	46
			
	 5.04
	  	Binding Effect	  	46
			
	 5.05
	  	Financial Statements; No Material Adverse Effect	  	46
			
	 5.06
	  	Litigation	  	46
			
	 5.07
	  	No Default	  	47
			
	 5.08
	  	Ownership of Property; Liens	  	47
			
	 5.09
	  	Environmental Compliance	  	47
			
	 5.10
	  	Insurance	  	47
			
	 5.11
	  	Taxes	  	47
			
	 5.12
	  	ERISA Compliance	  	47
			
	 5.13
	  	Subsidiaries	  	48
			
	 5.14
	  	Disclosure	  	48
			
	 5.15
	  	Compliance with Laws	  	48
			
	 5.16
	  	Margin Regulations; Investment Company Act	  	49
			
	 5.17
	  	Tax Shelter Regulations	  	49
			
	ARTICLE VI	  	    AFFIRMATIVE COVENANTS	  	49
			
	 6.01
	  	Financial Statements	  	49
			
	 6.02
	  	Certificates; Other Information	  	50
			
	 6.03
	  	Notices	  	51
			
	 6.04
	  	Payment of Obligations	  	51
			
	 6.05
	  	Preservation of Existence, Etc	  	51
			
	 6.06
	  	Maintenance of Properties	  	52
			
	 6.07
	  	Maintenance of Insurance	  	52

  

 ii 









 TABLE OF CONTENTS 

(continued) 
  


					
	 	  	 	  	Page
			
	 6.08
	  	Compliance with Laws	  	52
			
	 6.09
	  	Books and Records	  	52
			
	 6.10
	  	Inspection Rights	  	53
			
	 6.11
	  	Use of Proceeds	  	53
			
	 6.12
	  	Financial Covenants	  	53
			
	 6.13
	  	Additional Guarantors	  	54
			
	ARTICLE VII	  	    NEGATIVE COVENANTS	  	54
			
	 7.01
	  	Liens	  	54
			
	 7.02
	  	Investments	  	55
			
	 7.03
	  	Funded Debt	  	55
			
	 7.04
	  	Fundamental Changes	  	56
			
	 7.05
	  	Dispositions	  	56
			
	 7.06
	  	Restricted Payments	  	57
			
	 7.07
	  	Change in Nature of Business	  	58
			
	 7.08
	  	Transactions with Affiliates	  	58
			
	 7.09
	  	Margin Regulations	  	58
			
	 7.10
	  	Subordinated Liabilities	  	58
			
	ARTICLE VIII	  	    EVENTS OF DEFAULT AND REMEDIES	  	58
			
	 8.01
	  	Events of Default	  	58
			
	 8.02
	  	Remedies Upon Event of Default	  	61
			
	 8.03
	  	Application of Funds	  	61
			
	ARTICLE IX	  	    ADMINISTRATIVE AGENT	  	62
			
	 9.01
	  	Appointment and Authorization of Administrative Agent	  	62
			
	 9.02
	  	Rights as a Lender	  	62
			
	 9.03
	  	Exculpatory Provisions	  	62
			
	 9.04
	  	Reliance by Administrative Agent	  	63
			
	 9.05
	  	Delegation of Duties	  	63
			
	 9.06
	  	Resignation of Agent	  	64
			
	 9.07
	  	Non-Reliance on Agent and Other Lenders	  	64
			
	 9.08
	  	No Other Duties, Etc	  	65

  

 iii 









 TABLE OF CONTENTS 

(continued) 
  


					
	 	  	 	  	Page
			
	 9.09
	  	Administrative Agent May File Proofs of Claim	  	65
			
	ARTICLE X	  	    MISCELLANEOUS	  	65
			
	 10.01
	  	Amendments, Etc	  	65
			
	 10.02
	  	Notices; Effectiveness; Electronic Communications	  	67
			
	 10.03
	  	No Waiver; Cumulative Remedies	  	68
			
	 10.04
	  	Expenses; Indemnity; Damage Waiver	  	68
			
	 10.05
	  	Payments Set Aside	  	70
			
	 10.06
	  	Successors and Assigns	  	71
			
	 10.07
	  	Treatment of Certain Information; Confidentiality	  	74
			
	 10.08
	  	Right of Setoff	  	74
			
	 10.09
	  	Interest Rate Limitation	  	75
			
	 10.10
	  	Counterparts; Integration; Effectiveness	  	75
			
	 10.11
	  	Survival of Representations and Warranties	  	75
			
	 10.12
	  	Severability	  	76
			
	 10.13
	  	Governing Law; Jurisdiction; Etc	  	76
			
	 10.14
	  	Waiver of Right to Trial by Jury	  	77
			
	 10.15
	  	USA PATRIOT Act Notice	  	77
			
	 10.16
	  	Time of the Essence	  	77

  

 iv 








 SCHEDULES 
  

			
	2.01	    	Commitments and Applicable Percentages
	5.06	    	Litigation
	5.09	    	Environmental Matters
	5.13	    	Subsidiaries and Other Equity Investments
	7.01	    	Existing Liens
	7.03	    	Existing Indebtedness
	10.02	    	Administrative Agent’s Office, Certain Addresses for Notices


EXHIBITS 
  

			
	Form of	  	
	A	  	Committed Loan Notice
	B	  	Swing Line Loan Notice
	C	  	Note
	D	  	Compliance Certificate
	E	  	Assignment and Assumption

  

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 CREDIT AGREEMENT 

CREDIT AGREEMENT (this “Agreement”) is entered into as of February 27, 2007, among THE FRESH MARKET, INC. a North
Carolina corporation (“Borrower”), each lender from time to time party hereto (collectively, “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing
Line Lender and L/C Issuer. 
 Borrower has requested that Lenders provide a revolving credit facility, and Lenders are willing to do so on the
terms and conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: 

ARTICLE I 

DEFINITIONS AND ACCOUNTING TERMS 

1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: 

“Adjusted Funded Debt” means (a) Funded Debt plus (b) 8 times lease and rental expense. 

“Administrative Agent” or “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
Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as Agent may from time to time notify Borrower and Lenders. 

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by Agent. 

“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, the Person specified. “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. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or equivalent governing body of such Person. 

“Agent Fee Letter” shall refer to the January 25, 2007 letter from Bank of America and Banc of America Securities
LLC to Borrower. 
 “Aggregate Commitments” means the Commitments of all Lenders. 

“Agreement” means this Credit Agreement. 
  


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 “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. If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate 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, from time to time, the following percentages per
annum, based upon the ratios set forth below, as set forth in the most recent Compliance Certificate received by Lender pursuant to Section 6.02(a) or (b): 

 

												
	 Pricing
Level
	  	 Ratio of Adjusted Funded Debt
(computed
 as of the last day of the immediately

preceding fiscal quarter) to EBITDAR

(computed on a consolidated basis

(excluding any Family Real Estate Entity)

as of the last day of the immediately

preceding fiscal quarter for the four fiscal

quarterly periods then ending)
	  	Applicable Rate	 
	  	  	Commitment
Fee	 	 	For 
Eurodollar
Rate
Loans/Floating
LIBOR

Loans/L/C Fee
for standby
Letters of Credit	 	 	For Base
Rate Loans	 
	 1
	  	33.75x	  	.150	% 	 	1.4000	% 	 	0.00	% 
	 2
	  	33.25 x <3.75x	  	.150	% 	 	1.1500	% 	 	0.00	% 
	 3
	  	32.75 x but <3.25x	  	.125	% 	 	0.9000	% 	 	0.00	% 
	 4
	  	32.25 x but <2.75x	  	.100	% 	 	0.6500	% 	 	0.00	% 
	 5
	  	<2.25x	  	.100	% 	 	0.4000	% 	 	0.00	% 

 Any increase or decrease in
the Applicable Rate resulting from a change in the applicable financial ratio shall become effective as of the first Business Day of the month immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(a) or (b); provided, however, that if no Compliance Certificate is delivered when due in accordance with such applicable Section, then the Pricing Level resulting in the highest Applicable Rate in the
applicable pricing grids above shall apply as of the first Business Day of the month following the date such Compliance Certificate was required to have been delivered until such Compliance Certificate is actually delivered. The Applicable Rate in
effect for the period commencing on the Closing Date until the first Business Day of the month immediately following the first date a Compliance Certificate is delivered pursuant to Section 6.02(a) shall be determined based upon Pricing
Level 2 of the pricing grid set forth above. 
 “Assignment and Assumption” means an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b), and accepted by Agent, in substantially the form of Exhibit E or any other form approved by Agent.

  

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 “Attorney Costs” means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel, provided, however, that Attorney Costs shall be determined with reference to the actual work done by such attorneys at standard hourly rates and shall not be determined with reference
to the amount of any indebtedness. 
 “Attributable Indebtedness” means, on any date, (a) in respect of
any capital 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, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount
of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease. 

“Audited Financial Statements” means the audited consolidated balance sheet of Borrower and its Subsidiaries for the
fiscal year ended December 31, 2005, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of Borrower and its Subsidiaries, including the notes thereto. 

“Autoborrow Agreement” means the Autoborrow Service Agreement by and between Borrower and Bank of America dated
February 27, 2007 and all amendments, modifications or substitutions thereto. 
 “Availability Period”
means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination of the
commitments of Lenders to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02. 

“Bank of America” means Bank of America, N.A. and its successors. 

“Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus
1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate
announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. 

“Base Rate Loan” means a Loan that bears interest based on the Base Rate. 

“Berry Family” means all or any of the following, collectively and in the aggregate: Ray D. Berry, his spouse, children,
children-in-law, and grandchildren. 
 “Borrower” has the meaning specified in the introductory paragraph
hereto. 
 “Borrower Materials” has the meaning specified in Section 6.02. 

 

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 “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the
context may require. 
 “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank eurodollar market. 
 “Cash Collateralize”
has the meaning specified in Section 2.03(g). 
 “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 or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority. 

“Change of Control” means (a) the failure of the Berry Family, in the aggregate, to own and control, directly or
indirectly, more than fifty percent (50%) of the capital ownership of Borrower or (b) any change in ownership with respect to any Subsidiary of Borrower. 

“ Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01. 
 “Code” means the Internal Revenue Code of 1986. 

“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to Borrower pursuant to
Section 2.01, (b) purchase participations in L/C Obligations, 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 or in the Assignment and Assumption 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. The aggregate
amount of the Commitments is $175,000,000 as set forth on Schedule 2.01. 
 “Committed Borrowing” means
a borrowing consisting of simultaneous Committed 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. 

“Committed Loan” has the meaning specified in Section 2.01. 

“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed 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 A. 

“Compliance Certificate” means a certificate substantially in the form of Exhibit D. 

 

 4 








 “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” has the meaning specified in the definition of “Affiliate”. 

“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. 

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect 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 L/C 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 L/C Fees, a rate equal to the Applicable Rate plus 2% per annum. 

“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Committed Loans, participations
in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

 “Discretionary Distributions” means quarterly distributions (other than S-Corp Tax Distributions) paid by
Borrower to its shareholders in accordance with the terms of Section 7.06(d) hereof. 

“Disposition” or “Dispose” means the sale, transfer, license, lease (as lessor, not as lessee) 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. 
 “Dollar” and “$” mean lawful money of the United States. 

“EBIT” means net income, less income or plus loss from discontinued operations and extraordinary items, plus income
taxes, plus interest expense. 
  

 5 








 “EBITDA” means net income, less income or plus loss from discontinued
operations and extraordinary items, plus income taxes, plus interest expense, plus depreciation, depletion, and amortization. 

“EBITDAR” means net income, less income or plus loss from discontinued operations and extraordinary items, plus income
taxes, plus interest expense, plus depreciation, depletion and amortization plus lease and rental expense. 
 “Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; and (c) any other Person (other than a natural person) approved by (i) Agent, the L/C Issuer and Swing Line Lender (each such approval not to be unreasonably
withheld or delayed), and (ii) unless an Event of Default has occurred and is continuing, Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include Borrower or any of Borrower’s Affiliates or Subsidiaries. 
 “Environmental
Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems. 

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of 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. 

“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 Borrower within
the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by 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 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

  

 6 








 
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 Borrower or any ERISA Affiliate. 

“Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate. 

“Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum determined by
Agent pursuant to the following formula: 
  

									
		 	Eurodollar Rate    =	 		 	 Eurodollar Base Rate
	  	
		 	 	 	1.00 – Eurodollar Reserve Percentage	  	

 Where, 

“Eurodollar Base Rate” means, for such Interest Period (rounded upwards, as necessary, to the nearest
1/100 of 1%) the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by Agent from time to
time) at approximately 11:00 a.m., London time, two Business 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. If such
rate is not available at such time for any reason, then the “Eurodollar Base Rate” for such Interest Period (rounded upwards, as necessary, to the nearest 1/100 of 1%) shall be the rate per annum determined by Agent to be the rate
at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest
Period. 
 “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board of Governors of the Federal Reserve System of the
United States for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The
Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage. 

“Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on the Eurodollar Rate. 

“Event of Default” has the meaning specified in Section 8.01. 

 

 7 








 “Excess Cash Flow” means for any fiscal year of Borrower, EBITDAR minus
S-Corp Tax Distributions minus interest expense minus lease and rental expense minus current maturities of long term debt minus current maturities of capital leases. 

“Excluded Taxes” means, with respect to Agent, any Lender, the L/C Issuer or any other recipient of any payment to be
made by or on account of any obligation of Borrower hereunder, (a) taxes imposed on or measured by its net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, and (b) any branch profits taxes imposed by
the United States or any similar tax imposed by any other jurisdiction in which Borrower is located. 
 “Existing Letter
of Credit” means that certain letter of credit issued by Bank of America, N.A. for the benefit of Liberty Mutual Insurance Company in the principal amount of $3,795,200, increasing to $4,100,000 on May 1, 2007 and $4,450,000 on
August 1, 2007, with an expiration date of November 1, 2007, which automatically extends for additional one-year periods unless terminated by Bank of America, N.A.. 

“Family Real Estate Entity” means any corporation, partnership, limited liability company, or other entity under the
Control of the Berry Family or any member or members thereof (including but not limited to any Berry Realty Project) which has as its principal purpose to own, hold, and develop real property for the benefit of the Borrower. 

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by Agent.

 “Fixed Charge Coverage Ratio” means the ratio of (a) EBITDAR minus S-Corp Tax Distributions and
Discretionary Distributions, to (b) the sum of interest expense, lease expense, rent expense, the current portion of long term liabilities and the current portion of capitalized lease obligations. 

“Floating LIBOR Loan” means a Loan that bears interest based on the Floating LIBOR Rate (including a Swing Line Loan).

 “Floating LIBOR Rate” means, for any day, the fluctuating rate of interest equal to the one month rate of
interest (rounded upwards, if necessary to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the one month London interbank offered rate for deposits in U.S. dollars at approximately 11:00 a.m. (London time) on such
day, as adjusted 
  

 8 








 
from time to time in Agent’s sole discretion for then-applicable reserve requirements, deposit insurance assessment rates and other regulatory costs. If for any reason such rate is not
available, the term “One-Month LIBOR Rate” shall mean, for any day, the fluctuating rate of interest equal to the one month rate of interest (rounded upwards, if necessary to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the one month London interbank offered rate for deposits in U.S. dollars at approximately 11:00 a.m. (London time) on such day, as adjusted from time to time in Agent’s sole discretion for then-applicable reserve requirements, deposit
insurance assessment rates and other regulatory costs; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates. 

“FRB” means the Board of Governors of the Federal Reserve System of the United States. 

“Funded Debt” means, as to any Person at a particular time, 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 (including Subordinated Liabilities); 

(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; 
 (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); 
 (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 leases and Synthetic Lease Obligations; and 

(g) all Guarantees of such Person in respect of any of the foregoing. 

For all purposes hereof, the Funded Debt of any Person shall include the Funded Debt 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 Funded Debt is expressly made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be Swap Termination Value thereof as of such date. The amount of any capital 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. Notwithstanding anything herein to the contrary, the Funded Debt of the Borrower shall not include any indebtedness of any Family Real Estate Entity. 
  


 9 








 “GAAP” means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may
be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. 

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the European Union or the European Central Bank). . 

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or
having the economic effect of guaranteeing any Funded Debt 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 Funded Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee
in respect of such Funded Debt or other obligation of the payment or performance of such Funded Debt 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 Funded Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Funded Debt 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 Funded Debt or other obligation of any other Person,
whether or not such Funded Debt or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Funded Debt 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. 

“Guarantor” means any Subsidiary (if any) that executes a Guarantee in favor of the Agent in accordance with the terms
of Section 6.13. 
 “Guaranty” means the Guaranty (if any) made by the Guarantor in favor of Agent for the
benefit of Lenders, in form and substance satisfactory to Agent. 
 “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. 
  

 10 








 “Indemnified Taxes” means Taxes other than Excluded Taxes. 

“Indemnitees” has the meaning specified in Section 10.04(b). 

“Information” has the meaning specified in Section 10.07. 

“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan or a Floating LIBOR 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 or Floating LIBOR 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, two, three or six months thereafter, as selected by Borrower in its Committed Loan Notice; provided that: 

(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; 

(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and 

(iii) 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 Funded Debt of such other Person, or (c) the purchase or
other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such Investment. 
 “IRS” means the United
States Internal Revenue Service. 
 “ISP” means, with respect to any Letter of Credit, the “International
Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance). 

 

 11 








 “Issuer Documents” means with respect to any Letter of Credit, the L/C
Application, and any other document, agreement and instrument entered into by the L/C Issuer and Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit. 

“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. 

“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing
in accordance with its Applicable Percentage. 
 “L/C Application” means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer. 
 “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 Committed 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 Expiration Date” means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day). 
 “L/C
Fee” has the meaning specified in Section 2.03(i). 
 “L/C Issuer” means Bank of America in its
capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. 
 “L/C
Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of
computing the amount available to be drawn under any Letter of 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.

 “L/C Sublimit” means an amount equal to $25,000,000. The L/C Sublimit is part of, and not in addition to,
the Aggregate Commitments. 
 “Lender” has the meaning specified in the introductory paragraph hereto and, as
the context requires, includes Swing Line Lender. 
  

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 “Lending Office” means, as to any Lender, the office or offices of such
Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Borrower and Agent. 

“Letter of Credit” means any letter of credit issued hereunder and shall include the Existing Letter of Credit. A Letter
of Credit may be a commercial letter of credit or a standby letter of credit. 
 “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 economic effect as any of the foregoing).

 “Loan” means an extension of credit by a Lender to Borrower under Article II in the form of a
Committed Loan or a Swing Line Loan. 
 “Loan Documents” means this Agreement, each Note, each Issuer Document,
the Agent Fee Letter, and the Guaranty (if any). 
 “Loan Parties” means, collectively, Borrower and each
Person (other than Agent, the L/C Issuer, Swing Line Lender, or any Lender) executing a Loan Document including, without limitation, each Guarantor (if any). 

“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 Borrower or 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 the date that is the fifth anniversary of the date of this Agreement. 

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which
Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. 

“New Company Grocery Site Limit” means an amount equal to $25,000,000.00. The New Company Grocery Site Limit is part of,
and not in addition to, the Commitment. 
 “New Company Grocery Site Loans” means Committed Borrowings for the
fee acquisition and development of new company owned grocery sites. 
 “New Company Grocery Site Report” means
a quarterly report delivered by Borrower setting forth for each fiscal quarter (i) all New Company Grocery Site Loans made during such 

 

 13 








 
fiscal quarter and the use of the proceeds of such New Company Grocery Site Loans, (ii) any payments or prepayments of New Company Grocery Site Loans during such fiscal quarter,
(iii) the outstanding principal balance of all outstanding New Company Grocery Site Loans as of the last day of such fiscal quarter, (iv) all land purchase and development expenses incurred during such fiscal quarter in connection with
each new company grocery site location (with such expenses broken down by each new company grocery site location) and (v) the aggregate amount of land purchase and development expenses incurred through the last day of such fiscal quarter in
connection with each new company grocery site location (with such aggregate expenses being broken down by each new company grocery site location). 

“Note” means a promissory note made by Borrower in favor of a Lender evidencing Loans made by such Lender, substantially
in the form of Exhibit C. 
 “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. 
 “Organization
Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to
any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or
other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate or articles of formation or organization of such entity. 

“Other Taxes” means all present or future stamp, intangible or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, but specifically excluding
any Excluded Taxes. 
 “Outstanding Amount” means (i) with respect to Committed 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 Committed 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 amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including
as a result of any reimbursements by Borrower of Unreimbursed Amounts. 
  

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 “Participant” has the meaning specified in Section 10.06(d).

 “PBGC” means the Pension Benefit Guaranty Corporation. 

“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 Borrower or any ERISA Affiliate or to which 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” shall mean an acquisition or any series of related acquisitions of the type of business
permitted to be engaged in by Borrower pursuant to Section 7.07 hereof so long as (a) no Default or Event of Default shall then exist or would exist after giving effect thereto, (b) Borrower shall demonstrate to the reasonable
satisfaction of the Administrative Agent that Borrower will be in pro forma compliance with all of the terms and provisions of the financial covenants set forth in Section 6.12, (c) if the total consideration (including, without
limitation, assumed liabilities, earnout payments and any other deferred payment) for the business or property acquired in such acquisition or series of related acquisitions exceeds $25,000,000, the Required Lenders shall have approved such
acquisition(s) and (d) such acquisition shall not be a “hostile” acquisition and shall have been approved by the Board of Directors of the Person or business to be 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 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. 

“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. 
 “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 Committed
Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a L/C 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 having more than 50% of the Aggregate Commitments or,
if the commitment of each Lender to make Loans and 
  

 15 








 
the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that the Commitment
of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided further that at any time two or fewer Lenders hold in
excess of 50% of the Commitments, and there are five or more Lenders party to this Agreement, Required Lenders shall also be required to comprise at least three Lenders. 

“Responsible Person” means the chief executive officer, president, chief financial officer, controller or assistant
controller of a Loan Party. Any document delivered hereunder that is signed by a Responsible Person 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 Person shall be conclusively presumed to have acted on behalf of such Loan Party. 

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with
respect to any capital stock or other equity interest of Borrower or any Subsidiary (including S-Corp Tax Dividends and Discretionary Distributions), or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest or of any option, warrant or other right to acquire any such capital stock or other
equity interest. 
 “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002. 

“S-Corp Tax Distributions” means for any accounting period the amount of cash distributions paid by Borrower to its
shareholders in order to make income tax payments as a result of the S Corporation status of Borrower for the tax period included within such accounting period. 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal
functions. 
 “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934,
Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in
effect on any applicable date hereunder. 
 “Subordinated Liabilities” means liabilities of Borrower under the
Amended and Restated Subordinated Revolving Loan Agreement between Borrower and its shareholders as of March 11, 2004, as amended as of May 16, 2006, or any other liabilities subordinated to the Obligations in a manner acceptable to the
Administrative Agent in its reasonable discretion. 
 “Subsidiary” of a Person means a corporation,
partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests 

 

 16 








 
having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at
the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Borrower. 
 “Swap Contract” means
(a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the 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 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 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 B. 
  

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 “Swing Line Sublimit” means an amount equal to the lesser of
(a) $10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of (although uncommitted except as otherwise provided for herein), 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 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, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. 

“Threshold Amount” means $5,000,000. 

“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations. 

“Type” means, with respect to a Committed Loan, its character as a Base Rate Loan, a Floating LIBOR Loan or a Eurodollar
Rate Loan. 
 “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

 “United States” and “U.S.” mean the United States of America. 

“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i). 

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 “herein,” “hereof” and “hereunder.” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and
not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, 
  

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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 or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights. 
 (b) In the computation of periods of time from a specified date to
a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through”
means “to and including.” 
 (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document. 
 1.03
Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein. 
 (b) Changes in GAAP. If at any time any change
in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or the Required Lenders shall so request, Agent, Lenders and Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) Borrower shall provide to Agent and Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. 
 1.04
Rounding. Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). 

1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight
or standard, as applicable). 
 1.06 Letter of Credit Amounts. Unless otherwise specified herein the amount of a Letter
of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time. 
  

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 ARTICLE II 

THE COMMITMENTS AND CREDIT EXTENSIONS 

2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such
loan, a “Committed Loan”) to 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 such Lender’s Commitment; provided,
however, that after giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any 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. Within the
limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01.
Committed Loans may be Floating LIBOR Loans, Base Rate Loans or Eurodollar Rate Loans, as further provided herein. 
 2.02
Borrowings, Conversions and Continuations of Committed Loans. (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon Borrower’s
irrevocable notice to Agent, which may be given by telephone. Each such notice must be received by Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Floating LIBOR Loans or Base Rate Loans, and (ii) on the requested date of any Borrowing of Floating LIBOR Loans or Base Rate Loans. Each telephonic notice by Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Person of Borrower. Each Borrowing of, conversion to or continuation
of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Floating LIBOR Loans or
Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether Borrower is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as,
or converted to, Floating LIBOR Loans. Any such automatic conversion to Floating LIBOR 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 Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. 

 

 20 








 (b) Following receipt of a Committed Loan Notice, Agent shall promptly notify each Lender of
the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by Borrower, Agent shall notify each Lender of the details of any automatic conversion to Floating LIBOR
Loans described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to Agent in immediately available funds at Administrative Agent’s Office not later than 1:00
p.m. on the Business Day specified in the applicable Committed 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),
Agent shall make all funds so received available to Borrower in like funds as received by Agent either by (i) crediting the account of Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Agent by Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to such Borrowing is given by 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 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, and the Required Lenders may demand that any or all of
the then outstanding Eurodollar Rate Loans be converted immediately to Floating LIBOR Loans and Borrower agrees to pay all amounts due under Section 3.05 in accordance with the terms thereof due to any such conversion. 

(d) Agent shall promptly notify Borrower and Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans
upon determination of such interest rate. 
 (e) After giving effect to all Committed Borrowings, all conversions of Committed
Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than five (5) Interest Periods in effect with respect to Committed Loans. 

2.03 Letters of Credit. (a) The Letter of Credit Commitment. 

(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements
of the other Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the L/C Expiration Date, to issue Letters of Credit for the account of Borrower or certain
of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate
in Letters of Credit issued for the account of Borrower or certain of its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus 
  

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such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, or (z) the Outstanding Amount of the L/C
Obligations shall not exceed the L/C Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with the conditions
set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. The Existing Letter of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing
Date shall be subject to and governed by the terms and conditions hereof. 
 (ii) The L/C Issuer shall not issue
any Letter of Credit, if: 
 (A) subject to Section 2.03(b)(iv), 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; or 

(B) the expiry date of such requested Letter of Credit would occur after the L/C Expiration Date, unless all the Lenders
have approved such expiry date. 
 (iii) The L/C Issuer shall be under no obligation to issue any Letter of
Credit if: 
 (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the
L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which the L/C Issuer in good faith deems material to it; 
 (B) the issuance of such Letter of Credit
would violate one or more policies of the L/C Issuer; 
 (C) such Letter of Credit is to be denominated in a
currency other than Dollars; 
 (D) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender; or 

 

 22 








 (E) unless specifically provided for in this Agreement, such Letter of
Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder. 

(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue
such Letter of Credit in its amended form under the terms hereof. 
 (v) The L/C Issuer shall be under no
obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue 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 Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to Agent in Article IX with respect to any acts taken or omissions
suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” or “Agent” as
used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer. 

(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit. 

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of Borrower delivered to the
L/C Issuer (with a copy to Agent) in the form of a L/C Application, appropriately completed and signed by a Responsible Person of Borrower. Such L/C Application must be received by the L/C Issuer and Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such L/C Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof;
(C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may require. Additionally, Borrower shall furnish to the L/C Issuer and Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or Agent
may require. 
  

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 (ii) Promptly after receipt of any L/C Application at the address set forth
in Section 10.02 for receiving L/C Applications and related correspondence, the L/C Issuer will confirm with Agent (by telephone or in writing) that Agent has received a copy of such L/C Application from Borrower and, if not, the L/C
Issuer will provide Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, 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 in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of Borrower (or
the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of
such Letter of Credit. 
 (iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to Borrower and Agent a true and complete copy of such Letter of Credit or amendment. 

(iv) If Borrower so requests in any applicable L/C Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension
at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the L/C Expiration
Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form
(as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that
is five Business Days before the Non-Extension Notice Date (1) from Agent that the Required Lenders have elected not to permit such extension or (2) from Agent, any Lender or Borrower that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension. 
  

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 (c) Drawings and Reimbursements; Funding of Participations. 

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the
L/C Issuer shall notify Borrower and Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), Borrower shall reimburse the L/C Issuer through
Agent in an amount equal to the amount of such drawing. If Borrower fails to so reimburse the L/C Issuer by such time, 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. In such event, Borrower shall be deemed to have requested a Committed Borrowing of Floating LIBOR 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 Floating LIBOR Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or 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 funds available to Agent for the
account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a Floating LIBOR Loan to Borrower in such amount. Agent shall remit the funds so received to the L/C Issuer. 

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Floating LIBOR
Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.

 (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer. 

(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right

  

 25 








 
which such Lender may have against the L/C Issuer, 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 Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as provided herein. 
 (vi) If any Lender fails
to make available to Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), the
L/C Issuer shall be entitled to recover from such Lender (acting through Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the
L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees
customarily charged by the LC/ Issuer in connection with the foregoing. A certificate of the L/C Issuer submitted to any Lender (through Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 (d) Repayment of Participations. 

(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such
Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly
from Borrower or otherwise, including proceeds of Cash Collateral applied thereto by Agent), Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by Agent. 

(ii) If any payment received by Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to Agent for the account of the L/C Issuer
its Applicable Percentage thereof on demand of 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 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 Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and
to repay each L/C Borrowing shall be absolute, 
  

 26 








 
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 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 L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; 

(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of
Credit; 
 (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; 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, Borrower or any Subsidiary. 
 Borrower
shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with Borrower’s instructions or other irregularity, Borrower will immediately notify the
L/C Issuer. Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid. 

(f) Role of L/C Issuer. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall
not have any responsibility to obtain any document (other than any sight 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 L/C Issuer, Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval of 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 
  

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Letter of Credit or Issuer Document. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude Borrower’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 L/C Issuer,
Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses or this Section 2.03(f) to the contrary notwithstanding, Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring 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. Upon the request of Agent, (i) if the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the L/C Expiration Date, any L/C Obligation for any reason remains outstanding, Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes hereof, “Cash Collateralize”
means to pledge and deposit with or deliver to Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to Agent
and the L/C Issuer (which documents are hereby consented to by Lenders). Derivatives of such term have corresponding meanings. Borrower hereby grants to Agent, for the benefit of the L/C Issuer and Lenders, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the foregoing. Cash collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. 

(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and Borrower when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as
most recently published by the International Chamber of Commerce (the “ICC”) at the time of issuance shall apply to each commercial Letter of Credit. 

(i) L/C Fees. Borrower shall pay to Agent for the account of each Lender (i) L/C Issuer’s reasonable customary fees for
each commercial Letter of Credit and (ii) for each standby Letter of Credit equal to the Applicable Rate for Floating LIBOR Loans times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the
daily amount 
  

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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. L/C 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 L/C
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 standby 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 L/C Fees shall accrue at the
Default Rate. 
 (j) Documentary and Processing Charges Payable to L/C Issuer. Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such individual customary
fees and standard costs and charges are due and payable on demand and are nonrefundable. 
 (k) Conflict with Issuer
Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Documents, the terms hereof shall control. 

2.04 Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions set forth herein, Swing Line Lender
agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans if the Autoborrow Agreement is in effect and to consider making loans, which shall not be unreasonably withheld, if the Autoborrow
Agreement is not in effect (each such loan, a “Swing Line Loan”) to 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, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of
such Lender’s Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any 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. Except as otherwise provided herein, the Swing Line is a discretionary, uncommitted facility and Swing Line Lender may terminate or suspend the Swing Line at any time in its sole discretion upon notice to
Borrower which notice may be given by Swing Line Lender before or after Borrower requests a Swing Line Loan hereunder. Each Swing Line Loan shall be a Floating LIBOR 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 Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such
Swing Line Loan. 
 (b) Borrowing Procedures. Unless the Swing Line has been terminated or suspended by the Swing Line
Lender as provided in subsection (a) above, each Swing Line Borrowing shall be made, at the election of Borrower, (1) pursuant to the Autoborrow Agreement; or (2) upon Borrower’s irrevocable notice to Swing Line Lender and Agent,
which may be given by 
  

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telephone. Each such notice must be received by Swing Line Lender and 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 $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to Swing Line Lender and Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Person of Borrower. Promptly after receipt by Swing Line Lender of any telephonic Swing Line Loan Notice, Swing Line Lender will confirm with Agent (by telephone or in writing) that Agent has also
received such Swing Line Loan Notice and, if not, Swing Line Lender will notify Agent (by telephone or in writing) of the contents thereof. Unless (x) the Swing Line has been terminated or suspended by the Swing Line Lender as provided in
subsection (a) above, or (y) the Swing Line Lender has received notice (by telephone or in writing) from 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
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, 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 Borrower at
its office by crediting the account of Borrower on the books of Swing Line Lender in immediately available funds. Lenders agree that Swing Line Lender may agree to modify the borrowing procedures used in connection with the Swing Line in its
discretion and without affecting any of the obligations of Lenders hereunder other than notifying Agent of a Swing Line Loan Notice. 

(c) Refinancing of Swing Line Loans. 

(i) Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of Borrower (which hereby
irrevocably authorizes Swing Line Lender to so request on its behalf), that each Lender make a Floating LIBOR 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 Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Floating LIBOR Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02. Swing Line Lender shall furnish Borrower with a copy of the applicable Committed
Loan Notice promptly after delivering such notice to Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to Agent in immediately available funds for the account
of Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be
deemed to have made a Floating LIBOR Loan to Borrower in such amount. Agent shall remit the funds so received to Swing Line Lender. 

(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with
Section 2.04(c)(i), the request for a Committed Loan submitted by Swing Line Lender as set forth herein shall be deemed to be a request 

 

 30 








 
by Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to Agent for the account of 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 Agent for the account of 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),
Swing Line Lender shall be entitled to recover from such Lender (acting through 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
Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by swing Line Lender in connection with the foregoing. A certificate of Swing Line Lender submitted to any Lender (through Agent) with respect to any amounts owing under this clause (iii) shall be conclusive
absent manifest error. 
 (iv) Each Lender’s obligation to make Committed 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 Swing Line Lender, 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 Committed 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 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 Swing Line Lender
receives any payment on account of such Swing Line Loan, 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 Swing Line Lender. 

(ii) If any payment received by Swing Line Lender in respect of principal or interest on any Swing Line Loan is required
to be returned by Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by Swing Line Lender in its discretion), each Lender shall pay to Swing Line Lender its
Applicable Percentage thereof on demand of 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. Agent will make such demand upon the request of Swing Line

  

 31 








 
Lender. The obligations of Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement. 

(e) Interest for Account of Swing Line Lender. Swing Line Lender shall be responsible for invoicing Borrower for interest on the
Swing Line Loans. Until each Lender funds its Committed 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 Swing Line Lender. 
 (f) Payments Directly to Swing Line Lender. Borrower
shall make all payments of principal and interest in respect of the Swing Line Loans directly to Swing Line Lender. 
 2.05
Prepayments. (a) Borrower may, upon notice to Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by Agent
not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Floating LIBOR Loans or 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 $500,000 in excess thereof; and (iii) any prepayment of Floating LIBOR Loans or 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 Committed Loans to be prepaid. Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment of a 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 Committed Loans of Lenders in accordance with their respective Applicable Percentages. 

(b) Borrower may, upon notice to Swing Line Lender (with a copy to 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 be received by Swing Line Lender and 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 $100,000; provided, however, that any prepayments pursuant to the Autoborrow Agreement shall be deemed to comply with this Agreement. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. 

(c) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, Borrower shall immediately
prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. 
  

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 (d) If for any reason at any time the outstanding principal balance of all New Company
Grocery Site Loans shall exceed the New Company Grocery Site Limit, Borrower shall immediately prepay New Company Grocery Site Loans in an aggregate amount equal to such excess. Notwithstanding anything to the contrary contained herein, New Company
Grocery Site Loans may only be prepaid prior to the Maturity Date (i) with net proceeds from the sale of new company grocery site locations acquired and developed with the proceeds of New Company Grocery Site Loans or (ii) with funds other
than proceeds of the Committed Loans. 
 2.06 Termination or Reduction of Commitments. (a) Borrower may, upon notice
to 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 Agent not later than 11:00 a.m. five Business Days prior to the date
of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) 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 L/C 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. Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid
on the effective date of such termination. 
 (b) [Reserved] 

2.07 Repayment of Loans. (a) Borrower shall repay to Lenders on the Maturity Date the aggregate principal amount of Committed
Loans outstanding on such date. 
 (b) Borrower shall repay to Swing Line Lender each Swing Line Loan on 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 Eurodollar Rate for such Interest Period plus the Applicable Rate for Eurodollar Rate Loans; (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 Base Rate plus the Applicable Rate for Base Rate Loans; and (iii) each Floating LIBOR Loan shall
bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Floating LIBOR Rate plus the Applicable Rate for Floating LIBOR Loans. 

(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. 

 

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 (ii) If any amount (other than principal of any Loan) payable by Borrower
under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. 

(iii) Upon the request of the Required Lenders, while any Event of Default exists, Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. 

(iv) Accrued and unpaid interest on past due amounts 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) Commitment Fee. Borrower shall pay to Agent for the account of each Lender in accordance with its Applicable Percentage, a
commitment fee as set forth in the definition of “Applicable Rate” times the actual daily amount by which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding
Amount of L/C Obligations. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date and shall be prorated for any partial quarter during which it is applicable.
The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. For purposes of computing the commitment fee, Swing Line Loans shall not be counted towards or considered usage of the Aggregate Commitments. 

(b) Agent’s Fees. Borrower shall pay to Agent for Agent’s own account, fees in the amounts and at the times specified in
the Agent Fee Letter. Such fees shall be fully earned when paid and shall be nonrefundable for any reason whatsoever. 
 2.10
Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days 

 

 34 








 
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 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 Agent in the ordinary course of business. The accounts or records maintained by Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by Lenders to Borrower and
the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the accounts and records of Agent in respect of such matters, the accounts and records of Agent shall control in the absence of manifest error. Upon the request of any Lender
made through Agent, Borrower shall execute and deliver to such Lender (through Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. 
 (b) In addition to the
accounts and records referred to in subsection (a), each Lender and Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of Agent shall control in the absence of manifest error.

 2.12 Payments Generally; Agent’s Clawback. (a) General. All payments to be made by Borrower shall be
made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to 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 12:00 noon on the date specified herein. Agent will promptly distribute to each Lender its Applicable Percentage(or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by Agent after 12:00 noon 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 Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected
in computing interest or fees, as the case may be. 
 (b) (i) Funding by Lenders; Presumption by Agent. Unless Agent
shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Floating LIBOR Loans, prior to 12:00 noon on the date of such Committed Borrowing)
that such Lender will not make 
  

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available to Agent such Lender’s share of such Committed Borrowing, Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in
the case of a Committed Borrowing of Floating LIBOR Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to Agent, then the applicable Lender and Borrower severally agree to pay to Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to Borrower to but excluding the date of payment to 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 Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Agent in connection with the
foregoing and (B) in the case of a payment to be made by Borrower, the interest rate applicable to such Committed Borrowing. If Borrower and such Lender shall pay such interest to Agent for the same or an overlapping period, Agent shall
promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to Agent, then the amount so paid shall constitute such Lender’s Committed Loan
included in such Committed Borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to Agent. 

(ii) Payments by Borrower; Presumptions by Agent. Unless Agent shall have received notice from Borrower prior to
the date on which any payment is due to Agent for the account of the Lenders or the L/C Issuer hereunder that Borrower will not make such payment, Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if Borrower has not in fact made such payment, then each of Lenders or the L/C Issuer, as the case may be, severally agrees to
repay to Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date
of payment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation. A notice of Agent to any Lender or Borrower with respect to any amount owing under this
subsection (b) shall be conclusive, absent manifest error. 
 (c) Failure to Satisfy Conditions Precedent. If any Lender
makes available to Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Borrower by 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, Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. 

(d) Obligations of Lenders Several. The obligations of Lenders hereunder to make Committed Loans, to fund participations in
Letters of Credit and Swing Line Loans and to make payments under Section 10.04(c) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under
Section 
  

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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 Committed Loan, purchase its participation or to make its payment under Section 10.04(c): 

(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place
or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. 

2.13 Sharing of Payments. 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 Committed 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 Committed 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 Agent of such fact, and
(b) purchase (for cash at face value) participations in the Committed 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 Committed 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 Borrower pursuant to
and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to 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, upon notice to the Administrative Agent (which shall promptly notify
the Lenders), the Borrower may from time to time request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding $50,000,000; provided that any such request for an increase shall be in a minimum

  

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amount of $25,000,000. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). 
 (b)
Lender Elections to Increase. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable
Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. 

(c) Notification by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the Borrower and each Lender
of the Lenders’ responses to each request made hereunder. If the existing Lenders do not provide the full amount of a requested increase, the Borrower may invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in
form and substance satisfactory to the Administrative Agent and its counsel to achieve the full amount of such requested increase. Any such additional Lenders shall be subject to the approval of the Administrative Agent, the L/C Issuer and the Swing
Line Lender (which approvals shall not be unreasonably withheld). 
 (d) Effective Date and Allocations. If the Aggregate
Commitments are 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. 

(e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Person of the Borrower (i) certifying and attaching the resolutions adopted by the
Borrower approving or consenting to such increase, (ii) 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, (B) no Default exists, and (iii) demonstrating to the satisfaction of the Administrative Agent that the Borrower will be in pro forma compliance with the financial covenants set forth in
Section 6.12 after giving effect to such increase. The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section. 

(f) Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 or 10.01 to the
contrary. 
  

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 ARTICLE III 

TAXES, YIELD PROTECTION AND ILLEGALITY 

3.01 Taxes. (a) Payments Free of Taxes. Any and all payments by Borrower to or on account of any obligation of
Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if Borrower shall be required by any applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this
Section), Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make such deductions, and (iii) Borrower shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law. 
 (b) Payment of Other Taxes by
Borrower. Without limiting the provisions of subsection (a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. 

(c) Indemnification by Borrower. Borrower shall indemnify Agent, each Lender and the L/C Issuer, within 10 days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by Agent, such Lender or the L/C Issuer, as the case
may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other 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 Borrower by a Lender or the L/C Issuer (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error. 
 (d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by
Borrower to a Governmental Authority, Borrower shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to Agent. 
 (e) Status of Lenders. Any Lender, if requested by Borrower or Agent, shall
deliver such documentation prescribed by applicable law or reasonably requested by Borrower or Agent as will enable the Borrower or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

 (f) Treatment of Certain Refunds. If Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has paid additional amounts pursuant to this Section, it shall pay to Borrower an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other 
  

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than any interest paid by the relevant Governmental Authority with respect to such refund), provided that Borrower, upon the request of Agent, such Lender or the L/C Issuer, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Agent, such Lender or the L/C Issuer in the event Agent, such Lender or the L/C Issuer is required to repay
such refund to such Governmental Authority. This subsection shall not be construed to require Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the
Borrower or any other Person. 
 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 interbank market, then, on notice thereof by such Lender to Borrower through Agent, any obligation of such
Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans or Floating LIBOR Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies Agent and Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, Borrower shall, upon demand from such Lender (with a copy to 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,
Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due under Section 3.05 in accordance with the terms thereof due to such prepayment or conversion. 

3.03 Inability to Determine Rates. If Agent determines in connection with any request for a Eurodollar Rate Loan or a conversion
to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do
not exist for determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Base 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 Loan, Agent will promptly so notify Borrower and each Lender. Thereafter, the obligation of Lenders to make or maintain Eurodollar Rate Loans shall be suspended
until Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein. 

3.04 Increased Costs. (a) Increased Costs Generally. If any Change in Law shall: 

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with 
  

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or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurodollar Rate) or the L/C Issuer; 

(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of
Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3,01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or 

(iii) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting
this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein; 
 and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing
or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal,
interest or any other amount) then, upon request of such Lender or the L/C Issuer, Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the
case may be, for such additional costs incurred or reduction suffered. 
 (b) Capital Requirements. If any Lender or the
L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender
or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy),
then from time to time Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any
such reduction suffered. 
 (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth
the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to Borrower shall be conclusive absent manifest
error. Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof. 

 

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 (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as the case may be,
notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). 

3.05 Compensation for Losses. Upon demand of any Lender (with a copy to Agent) from time to time, Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of: 
 (a)
any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan or a Floating LIBOR 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); or 
 (b) any failure by 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 Floating LIBOR Loan on the date or in the amount notified by Borrower; 

including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such
Loan or from fees payable to terminate the deposits from which such funds were obtained. Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts payable
by Borrower to Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or
other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded. 

3.06 Mitigation Obligations. If any Lender requests compensation under Section 3.04, or Borrower 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 reasonable 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. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment. 
  

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 3.07 Survival. All of Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder. 
 ARTICLE IV

 CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 

4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent: 
 (a) Agent’s receipt of the following, each
of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Person of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders: 

(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, each Lender and Borrower;

 (ii) a Note executed by Borrower in favor of each Lender requesting a Note; 

(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible
Persons of each Loan Party as Agent may require evidencing the identity, authority and capacity of each Responsible Person thereof authorized to act as a Responsible Person in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party; 
 (iv) such documents and certifications as 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 each jurisdiction where its ownership, lease or operation of properties or the conduct of its business
requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; 

(v) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the
matters set forth concerning the Loan Parties and the Loan Documents in form and substance satisfactory to Agent; 

(vi) a certificate of a Responsible Person of each Loan Party either (A) attaching copies of all consents, licenses
and 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 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 Person of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that to the actual knowledge of Borrower there has been no
event or circumstance since the 
  

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date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; 

(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in
effect; 
 (ix) subordination agreements from the holders of the Subordinated Liabilities, 

and 

(x) such other assurances, certificates, documents, consents or opinions as Agent, the L/C Issuer, Swing Line Lender or
the Required Lenders reasonably may require. 
 (b) Any fees required to be paid on or before the Closing Date shall have been
paid. 
 (c) Unless waived by Agent, Borrower shall have paid all Attorney Costs of Agent to the extent invoiced prior to or on
the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between Borrower and Agent), but in no event to exceed $20,000 in the aggregate. 
 (d)
The Closing Date shall have occurred on or before February 28, 2007. 
 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 Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto. 
 4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for
Credit Extension is subject to the following conditions precedent: 
 (a) The representations and warranties of Borrower and
each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects 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) 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. 
 (b) No Default shall exist, or would result from such proposed Credit Extension or
from the application of the proceeds thereof. 
  

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 (c) Agent and, if applicable, the L/C Issuer or Swing Line Lender shall have received a
Request for Credit Extension in accordance with the requirements hereof. 
 (d) Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or consents related to the foregoing as Agent or the Required Lenders reasonably may require. 

Each Request for Credit Extension submitted by Borrower shall be deemed to be a representation and warranty that the conditions specified
in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension. 

4.03 Conditions to New Company Grocery Site Loans. The obligation of Lender to honor any Request for Credit Extension for a New
Company Grocery Site Loan is subject to the following conditions precedent: 
 (a) The satisfaction of the conditions set forth
in Section 4.02 with respect to such New Company Grocery Site Loan as of the day of the making of such New Company Grocery Site Loan. 

(b) Lender shall have received a Request for Credit Extension in accordance with the requirements hereof which shall set forth the
specific uses for such New Company Grocery Site Loan. 
 (c) Immediately after the making of such New Company Grocery Site Loan,
the outstanding principal balance of all New Company Grocery Site Loans shall not exceed the New Company Grocery Site Limit. 
 Each Request for
Credit Extension submitted by Borrower with respect to a New Company Grocery Site Loan shall be deemed to be a representation and warranty that the conditions specified in Sections 4.03(a), (b) and (c) have been
satisfied on and as of the date of the applicable Credit Extension. 
 ARTICLE V 

REPRESENTATIONS AND WARRANTIES 

Borrower represents and warrants to Agent and the Lenders that: 

5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party (a) is duly organized or formed, validly
existing and 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 its
assets and carry on its business and (ii) execute, deliver, and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and 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 licenses, except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect. 
  

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 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, (i) any Contractual Obligation to which such Person is a party 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 Law. 

5.03 Governmental Authorization. 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. 

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 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 Borrower and its Subsidiaries
as of the date thereof, including liabilities for taxes, material commitments and Funded Debt. 
 (b) The unaudited consolidated
financial statements of Borrower and its Subsidiaries dated September 24, 2006 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 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) Since the date of the Audited Financial Statements, to the actual knowledge of Borrower, 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. To the actual knowledge of Borrower after due and diligent investigation, except as specifically disclosed in Schedule 5.06 hereto, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of Borrower after due and diligent 
  

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investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against 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. Neither Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 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. 
 5.08 Ownership of Property; Liens. Each
of Borrower and each Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01. 

5.09 Environmental Compliance. To the actual knowledge of Borrower, except as specifically disclosed in Schedule 5.09
hereto, Borrower is not in violation of any Environmental Law and there are no claims alleging potential liability or responsibility for violation of any Environmental Law by its business, operations, and properties which could individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. 
 5.10 Insurance. To the actual knowledge of
Borrower, the properties of Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of Borrower, in such amounts, after giving effect to any self-insurance compatible with the following
standards, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where Borrower or the applicable Subsidiary operates. 

5.11 Taxes. 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 Borrower or any Subsidiary that would, if made, have a Material
Adverse Effect. 
 5.12 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 from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto, or the

  

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Plan is entitled to rely on an advisory or opinion letter of a volume submitter or prototype plan sponsor, and, to the best knowledge of Borrower, nothing has occurred which would prevent, or
cause the loss of, such qualification. 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 of the Code has been made with respect to any Plan. 
 (b) There are no pending or, to the best
knowledge of Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. 

(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither Borrower nor any ERISA Affiliate has incurred, or reasonably 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 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 Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA. 

5.13 Subsidiaries. As of the Closing Date, Borrower has no Subsidiaries other than those specifically disclosed in Part
(a) of Schedule 5.13 and has no equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.13. 

5.14 Disclosure. Borrower has disclosed to Administrative Agent 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 in connection with any Loan Document to Administrative Agent in connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. 
 5.15 Compliance with Laws. To the actual
knowledge of Borrower, Borrower, each Subsidiary and each other Loan Party is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in
such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect. 
  

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 5.16 Margin Regulations; Investment Company Act. 

(a) Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of
Credit, not more than 25% of the value of the assets (either of Borrower only or of 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 Borrower and any Lender or any Affiliate of any Lender relating to Funded Debt and within the scope of Section 8.01(e) will be margin stock. 

(b) None of Borrower, any Person Controlling Borrower, or any Subsidiary is or is required to be registered as an “investment
company” under the Investment Company Act of 1940. 
 5.17 Tax Shelter Regulations. Borrower does not intend to
treat the Loans and/or Letters of Credit and related transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), In the event Borrower determines to take any action inconsistent with
such intention, it will promptly notify Administrative Agent thereof. If Borrower so notifies Administrative Agent, Borrower acknowledges that Administrative Agent may treat its Committed Loans and/or Letters of Credit as part of a transaction that
is subject to Treasury Regulation Section 301.6112-1, and Lender will maintain the lists and other records required by such Treasury Regulation. 

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, Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to: 

6.01 Financial Statements. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender the following, in
form and detail satisfactory to Agent and the Required Lenders: 
 (a) as soon as available, but in any event within 135 days
after the end of each fiscal year of Borrower, a consolidated balance sheet of 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, audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing reasonably acceptable to Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and 
  

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 (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of Borrower, a consolidated balance sheet of 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 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 and certified by a Responsible Person of Borrower as fairly presenting the financial condition, results of operations, shareholders equity and cash flows of Borrower and its Subsidiaries
subject only to normal year-end audit adjustments and the absence of footnotes. 
 (c) as soon as available, but in any event at
least 15 days before the end of each fiscal year of Borrower, forecasts prepared by management of Borrower, in form satisfactory to Agent and the Required Lenders, of consolidated balance sheets and statements of income or operations and cash flows
of Borrower and its Subsidiaries for the immediately following fiscal year (including the fiscal year in which the Maturity Date occurs). 

6.02 Certificates; Other Information. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender the
following, in form and detail satisfactory to Agent and Required Lenders: 
 (a) concurrently with the delivery of the financial
statements referred to in Section 6.01(a), a duly completed Compliance Certificate signed by a Responsible Person of Borrower and a certificate of its independent certified public accountants certifying such financial statements and
stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event; 

(b) concurrently with the delivery of the financial statements referred to in Section 6.01(b), a duly completed Compliance
Certificate signed by a Responsible Person of Borrower; 
 (c) promptly after any request by Agent or any Lender, copies of any
audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower or any
Subsidiary, or any audit of any of them; 
 (d) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of Borrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower may file or be required to file with the Securities
and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to Agent pursuant hereto; 

(e) promptly after Borrower has notified Agent of any intention by Borrower to treat the Loans and/or Letters of Credit and related
transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form; and 

 

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 (f) within forty-five (45) days after the end of each fiscal quarter, a New Company
Grocery Site Report for such month. 
 Borrower hereby acknowledges that Agent will make available to Lenders and the L/C Issuer materials
and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting such materials and/or information on IntraLinks or another similar electronic system (the
“Platform”). 
 6.03 Notices. Promptly notify Agent and each Lender upon actual knowledge: 

(a) of the occurrence of any material Default; 

(b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws; 

(c) the occurrence of any ERISA Event; and 

(d) of any material change in accounting policies or financial reporting practices by Borrower or any Subsidiary. 

Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Person of Borrower setting forth details of the occurrence
referred to therein and stating what action 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 Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) 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 Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Funded Debt, as and
when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Funded Debt. 

6.05 Preservation of Existence, Etc. 

(a) Preserve, renew and maintain in full force and effect its legal existence; 

(b) preserve, renew and maintain in full force and effect its good standing under the Laws of the jurisdiction of its organization,
except in a transaction permitted by Section 7.04 or 7.05; 
  

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 (c) take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and 

(d) 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 and casualty 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 Borrower,
insurance with respect to its properties 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 (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under similar circumstances by such other Persons and providing for not less than 30 days’ prior notice to Agent of termination, lapse or cancellation of such insurance.

 6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws, and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. 

6.09 Books and Records. 

(a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving the assets and business of Borrower or such Subsidiary, as the case may be; and 

(b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over Borrower or such Subsidiary, as the case may be. 
  

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 6.10 Inspection Rights. Permit representatives and independent contractors of 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, at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to Borrower; provided, however, that when a Default exists Agent or any
Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of Borrower at any time during normal business hours and without advance notice. 

6.11 Use of Proceeds. Use the proceeds of the Credit Extensions to provide working capital and for general corporate purposes to
include without limitation (i) grocery store and office expansions, renovations, acquisitions, S-Corp Tax Distributions, Discretionary Distributions, repayments of Subordinated Liabilities (in each case in accordance with the terms of this
Agreement), (ii) support for the issuance of Letters of Credit in accordance with the terms of this Agreement and (iii) the fee acquisition and development of new company owned grocery sites in accordance with the terms of this Agreement.

 6.12 Financial Covenants. 

(a) [intentionally left blank] 

(b) Adjusted Funded Debt to EBITDAR Ratio. Maintain on a consolidated basis a ratio of Adjusted Funded Debt to EBITDAR not
exceeding the ratios indicated for each period specified below: 
  

			
	 Period
	  	Ratios
		
	 From the Closing Date through March 28, 2009
	  	4.50:1.00
		
	 From March 29, 2009 and thereafter
	  	4.25:1.0

 This ratio will be calculated at
the end of each reporting period for which this Agreement requires Borrower to deliver financial statements, using the results of the twelve-month period ending with that reporting period. 

(c) Fixed Charge Coverage Ratio. Maintain on a consolidated basis a Fixed Charge Coverage Ratio of at least the following ratios
indicated for each period specified below: 
  

			
	 Period
	  	Ratios
		
	 From the Closing Date through March 28, 2009
	  	1.60:1.00
		
	 From March 29, 2009 and thereafter
	  	1.70:1.0

  

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 This ratio will be calculated at the end of each reporting period for which this Agreement requires Borrower
to deliver financial statements, using the results of the twelve-month period ending with that reporting period. The current portion of long-term liabilities will be measured as of the date twelve (12) months prior to the current financial
statement. 
 (d) Exclusion of any Family Real Estate Entity. The term “consolidated basis” as used in the
foregoing financial covenants shall not include any Family Real Estate Entity. 
 6.13 Additional Guarantors. Notify
Agent at the time that any Person becomes a Subsidiary, and promptly thereafter (and in any event within 30 days), cause such Person to (a) become a guarantor of the Obligations by executing and delivering to Agent a guaranty reasonably
satisfactory in form and substance to Agent, and (b) deliver to Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (a)), all in form, content and scope reasonably satisfactory to Agent. 

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, Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly: 

7.01 Liens. Create, incur, assume or suffer to exist, any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, other than the following: 
 (a) Liens pursuant to any Loan Document; 

(b) Liens existing on the date hereof and listed on Schedule 7.01 hereto and any renewals or extensions thereof, provided that the
property covered thereby is not increased and any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b); 

(c) 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; 
 (d)
carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in
good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; 

(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and
other social security legislation, other than any Lien imposed by ERISA; 
  

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 (f) deposits to secure the performance of bids, trade contracts and leases (other than
Funded Debt), 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; 

(g) 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; 

(h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing
appeal or other surety bonds relating to such judgments; and 
 (i) liens securing Funded Debt permitted under
Section 7.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Funded Debt and (ii) the Funded Debt secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition. 
 7.02 Investments. Make any
Investments, except: 
 (a) Investments held by Borrower or such Subsidiary in the form of cash equivalents or short-term
marketable debt securities; 
 (b) advances to officers, directors and employees of Borrower and Subsidiaries in an aggregate
amount not to exceed $250,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes; 

(c) advances to shareholders of Borrower in an aggregate amount not to exceed $2,000,000 at any time outstanding; 

(d) Investments of Borrower in any wholly-owned Subsidiary and Investments of any wholly-owned Subsidiary in Borrower or in another
wholly-owned Subsidiary; 
 (e) Investments consisting of extensions of credit in the nature of accounts receivable or notes
receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to
prevent or limit loss; 
 (f) Guarantees permitted by Section 7.03; and 

(g) Permitted Acquisitions. 

7.03 Funded Debt. Create, incur, assume or suffer to exist any Funded Debt, except: 

(a) Funded Debt under the Loan Documents; 
  

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 (b) Funded Debt outstanding on the date hereof and listed on Schedule 7.03 hereto and
any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Funded Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder; 

(c) Guarantees of Borrower or any Subsidiary in respect of Funded Debt otherwise permitted hereunder of Borrower or any Subsidiary;

 (d) obligations (contingent or otherwise) of Borrower or any Subsidiary existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; 
 (e) Funded
Debt in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed assets within the limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of all such
Funded Debt at any one time outstanding shall not exceed $3,000,000; provided further, such amount shall increase by $1,000,000 on each anniversary date of this Agreement; and 

(f) Subordinated Liabilities not to exceed $2,500,000 in principal amount at any time outstanding. 

7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into, another Person, or Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom: 

(a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the continuing or surviving Person, or (ii) any
one or more other Subsidiaries, provided that when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, and, provided further that if any guarantor of the
Obligations is merging with another Subsidiary, such guarantor shall be the continuing or surviving Person; and 
 (b) any
Subsidiary may dispose of all or substantially all of its assets (upon voluntary Liquidation or otherwise), to Borrower or to another Subsidiary; provided that if the transferor in such a transaction is a wholly-owned Subsidiary, then the transferee
must also be a wholly-owned Subsidiary, and, provided further that if the transferor of such assets is a guarantor of the Obligations, the transferee thereof must either be Borrower or a guarantor of the Obligations. 

7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except: 

(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;

  

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 (b) Dispositions of inventory in the ordinary course of business; 

(c) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase
price of similar replacement property, or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; 

(d) Dispositions of property by any Subsidiary to Borrower or to a wholly-owned Subsidiary, provided that if the transferor of such
property is a guarantor of the Obligations, the transferee thereof must either be Borrower or a guarantor of the Obligations; 

(e) Dispositions permitted by Section 7.04; and 

(f) Dispositions of any new company owned grocery site location (which may include the actual grocery site location as well as any other
real estate developed in connection with or relating to such grocery site location) so long as (i) the acquisition and development of such location was financed with the proceeds of New Company Grocery Site Loans and (ii) such New Company
Grocery Site Loans are paid in full in connection with such Disposition with funds other than proceeds of the Committed Loans; provided, however, if Borrower provides Lender with an appraisal from an appraiser on Lender’s
approved list indicating that the fair market value of a new company owned grocery site location is less than the outstanding principal balance of the related New Company Grocery Site Loans, Borrower may still dispose of such location so long as
(i) the net proceeds received by Borrower in connection with such disposition are applied to such outstanding New Company Grocery Site Loans and (ii) the deficiency created by such disposition (i.e., the amount of such outstanding New
Company Grocery Site Loans which remain unpaid) when added to other deficiencies created by other dispositions shall not exceed $2,000,000 over the term of this Agreement. 

provided, however, that any Disposition pursuant to clauses (a) through (e) shall be for fair market value. 

7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except that: 
 (a) each Subsidiary may make Restricted Payments to Borrower and to wholly-owned
Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Subsidiary, to Borrower and any Subsidiary and to each other owner of capital stock or other equity interests of such Subsidiary on a pro rata basis based on their relative
ownership interests); 
 (b) Borrower and each Subsidiary may declare and make dividend payments or other distributions payable
solely in the common stock or other common equity interests of such Person; 
 (c) Borrower and each Subsidiary may purchase,
redeem or otherwise acquire shares of its common stock or other common equity interests or warrants or options to acquire any such shares with the proceeds received from the substantially concurrent issue of new shares of its common stock or other
common equity interests; and 
  

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 (d) Borrower may make quarterly discretionary distributions to its shareholders provided
that (i) Borrower demonstrates to the reasonable satisfaction of Agent that Borrower will be in pro forma compliance with all financial covenants in Section 6.12 after the making of each such distribution and (ii) the amount of
such distributions made on account of any fiscal quarter shall not exceed 25% of Excess Cash Flow for the four fiscal quarterly periods whose end coincides with the end of such fiscal quarter; and 

(e) Borrower may make S-Corp Tax Distributions. 

7.07 Change in Nature of Business. Engage in any material line of business substantially different from those lines of business
conducted by Borrower and its Subsidiaries on the date hereof. 
 7.08 Transactions with Affiliates. Enter into any
transaction of any kind with any Affiliate of Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to Borrower or such Subsidiary as would be obtainable by Borrower or such
Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to transactions between or among Borrower and any of its wholly-owned
Subsidiaries or between and among any wholly-owned Subsidiaries. 
 7.09 Margin Regulations. 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 Board of Governors of the Federal Reserve System of the United
States) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose. 

7.10 Subordinated Liabilities. Other than as permitted by the Amended and Restated Subordinated Revolving Loan Agreement between
Borrower and its shareholders as of March 11, 2004, (a) make any payment of principal of, or premium or interest on, any Subordinated Liabilities, (b) refinance, redeem, retire, purchase, defease or otherwise acquire any Subordinated
Liabilities or (c) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, provided, however, Borrower may make regularly scheduled current interest payments
provided no Default or Event of Default exists immediately prior to or after the making of any such payment of interest. 

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. Borrower or any other 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 days after Borrower receives written notice the same becomes due, any interest on any Loan or on any L/C Obligation, or any commitment or other fee due hereunder, or (iii)
within five days after Borrower receives written notice that the same becomes due, any other amount payable hereunder or under any other Loan Document; or 
  

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 (b) Specific Covenants. (i) Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01(a), 6.03, 6.10, 6.12 or Article VII; or (ii) Borrower fails to perform or observe any term, covenant or agreement specified in
Section 6.01(b) or 6.02 and such failure continues to a period of five (5) days after written notice thereof by Agent to Borrower; or 

(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection
(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after written notice by Agent to Borrower of such failure, or any default or event of default occurs under any
other Loan Document which, if susceptible to cure, has not been cured within thirty (30) days after written notice thereof by Agent to Borrower; or 

(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on
behalf of Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or 

(e) Cross-Default. (i) 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 Funded Debt or Guarantee (other than Funded Debt hereunder and Funded Debt under Swap Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such
Funded Debt 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 Funded Debt
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 Funded Debt to be demanded or to become due or to
be repurchased, prepaid, defeased or redeemed (automatically of otherwise), or an offer to repurchase, prepay, defease or redeem such Funded Debt 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 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 Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; or 
 (f)
Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an 

 

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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) Borrower or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against
all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or 

(h) Judgments. There is entered against Borrower or any Subsidiary (i) a final judgment or order for the payment of money in
an aggregate amount exceeding the Threshold Amount (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 10
consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or 

(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or

 (j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder 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 

(k) Change of Control. There occurs any Change of Control with respect to Borrower and/or any guarantor of the Obligations; or

 (1) Material Adverse Effect. There occurs any event or circumstance that has a Material Adverse Effect. 

 

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 8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions: 

(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated; 
 (b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by Borrower; 
 (c) require that Borrower Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and 
 (d) exercise on behalf of itself and the Lenders all rights and remedies
available to it 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 Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of Agent or any Lender. 
 8.03 Application of Funds. After the
exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to
Section 8.02), any amounts received on account of the Obligations shall be applied by Agent in the following order: 

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts payable to Agent
in its capacity as such (including Attorney Costs); 
 Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest and L/C Fees) payable to Lenders and the L/C Issuer (including Attorney Costs and amounts payable under Article III), ratably among them in proportion to the respective
amounts described in this clause Second payable to them; 
 Third, to payment of that portion of the Obligations
constituting accrued and unpaid L/C Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;

  

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 Fourth, to payment of that portion of the Obligations constituting unpaid principal
of the Loans and L/C Borrowings, ratably among Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Fourth held by them; 

Fifth, to Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit; and 
 Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to Borrower or as otherwise required by Law. 
 Subject to Section 2.03(c), 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. 

ARTICLE IX 

ADMINISTRATIVE AGENT 

9.01 Appointment and Authorization of Administrative Agent. Each of the Lenders and the L/C issuer hereby irrevocably appoints
Bank of America to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Agent to take such actions on its behalf and to exercise such powers as are delegated to Agent by the terms hereof and thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a
third party beneficiary of any of such provisions. 
 9.02 Rights as a Lender. The Person serving as 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 Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or
unless the context otherwise requires, include the Person serving as Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not Agent hereunder and without any duty to account therefor to Lenders. 

9.03 Exculpatory Provisions. Agent 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, Agent: 
 (a) shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is continuing; 
 (b) shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that 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 
  

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provided for herein or in the other Loan Documents), provided that Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to
liability or that is contrary to any Loan Document or applicable Law; and 
 (c) shall not, except as expressly set forth herein
and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Agent or any
of its Affiliates in any capacity. 
 (d) Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 8.02 and
10.01) or (ii) in the absence of its own gross negligence or willful misconduct. Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default is given to Agent by Borrower, a Lender
or the L/C Issuer. Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other 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 Agent. 

9.04 Reliance by Administrative Agent. 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. Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, Agent may presume that such condition is satisfactory to
such Lender or the L/C Issuer unless Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Agent may consult with legal counsel (who may be
counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 

9.05 Delegation of Duties. 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 Agent. 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 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 Agent. 
  

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 9.06 Resignation of Agent. Agent may at any time give notice of its resignation to
Lenders, the L/C Issuer and Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with 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 Agent gives notice of its
resignation, then the retiring Agent may on behalf of Lenders and the L/C Issuer, appoint a successor Agent meeting the qualifications set forth above; provided that if Agent shall notify the Borrower and the Lenders that no qualifying Person
has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring 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 Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is
appointed) and (2) all payments, communications and determinations provided to be made by, to or through Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor
Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Agent, and the retiring 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 Borrower to a
successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring 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 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. 
 Any resignation by Bank of America as Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a successor’s appointment as Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer 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 L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume
the obligations of the retiring L/C Issuer with respect to such Letters of Credit. 
 9.07 Non-Reliance on Agent and Other
Lenders. Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender 
  

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and the L/C Issuer also acknowledges that it will, independently and without reliance upon Agent or any other Lender or any of their Related Parties and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, no Lender holding a title 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 Agent, a Lender or the L/C Issuer hereunder. 

9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, 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 Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise 

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders, the L/C Issuer and Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of Lenders, the L/C Issuer and Agent and their respective agents and counsel and all other amounts due Lenders, the L/C Issuer and 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 and the L/C Issuer to make such payments to Agent and, in the event that Agent shall consent to the making of such payments directly to Lenders and the L/C Issuer, to pay
to Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any other amounts due Agent under Sections 2.09 and 10.04. Nothing contained herein shall be deemed
to authorize Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize Agent
to vote in respect of the claim of any Lender in any such proceeding. 
 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 Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and 

 

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Borrower or the applicable Loan Party, as the case may be, and acknowledged by 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) extend or increase the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender; 

(b) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal
or interest due to Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; 

(c) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) 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 Borrower to pay interest or L/C 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; 

(d) change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of each Lender; or 
 (e) 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; or 
 (f) release any material Guarantor from its obligations hereunder or under any Guaranty,
without the written consent of each Lender; 
 and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by Swing Line Lender in addition to the Lenders required above, affect the rights or duties of Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by Agent in addition to the Lenders required above, affect the rights or duties of Agent under this Agreement or any other Loan Document; and (iv) the Agent Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto. 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. 
  

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 10.02 Notices; Effectiveness; Electronic Communications. (a) Notices
Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to
the applicable telephone number, as follows: 
 (i) if to Borrower, Agent, the L/C Issuer or 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, telecopier number, electronic mail address or telephone number specified in
its Administrative Questionnaire. 
 Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business
on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). 

(b) Electronic Communications. Notices and other communications to Lenders and the L/C Issuer hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if
such Lender or the L/C Issuer, as applicable has notified the Agent that it is incapable of receiving notices under such Article by electronic communication. Agent or Borrower may, in its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless 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 
  

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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 Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Borrower, any Lender, the
L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s or Agent’s transmission of Borrower Materials through the Internet, except
to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any Agent Party have any liability to Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

 (d) Change of Address, Etc. Each of the Borrower, Agent, the L/C Issuer and Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to
Borrower, Agent, the L/C Issuer and Swing Line Lender. In addition, each Lender agrees to notify Agent from time to time to ensure that Agent has on record (i) an effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. 

(e) Reliance by Agent, L/C Issuer and Lenders. Agent, the L/C Issuer and Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify Agent, the L/C Issuer, each Lender and the Related Parties of each
of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other telephonic communications with Agent may be
recorded by Agent, and each of the parties hereto hereby consents to such recording. 
 10.03 No Waiver; Cumulative
Remedies. No failure by any Lender, the L/C Issuer or 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. 
 10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. Borrower shall pay (i) the Attorney Costs of Agent and its Affiliates in connection with the syndication of the credit facilities provided for herein (but subject to the limitation set forth in
Section 4.01(c)), the 
  

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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 Agent and its Affiliates in connection with the administration of this Agreement and the other Loan
Documents (other than out-of-pocket expenses incurred by Agent and its Affiliates in connection with the routine administration of this Agreement and the other Loan Documents) or any amendments, modifications or waivers of the provisions hereof or
thereof, (iii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iv) all reasonable
out-of-pocket expenses incurred by Agent, any Lender or the L/C Issuer (including all Attorney Costs of any counsel for Agent, any Lender or the L/C Issuer), 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 Borrower.
Borrower shall indemnify Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time
charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, or
the consummation of the transactions contemplated hereby or thereby, or, in the case of Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter
of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by 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 contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other 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
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. 

 

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 (c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to
Agent (or any such sub-agent), the L/C Issuer 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) 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 Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d). 
 (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable
law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No 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 unless such damages resulted from such Indemnitee’s gross negligence or willful misconduct. 

(e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.

 (f) Survival. The agreements in this Section shall survive the resignation of Agent and the L/C Issuer, the
replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. 

10.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made to Agent, the L/C Issuer or any
Lender, or Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and
(b) each Lender and the L/C Issuer severally agrees to pay to Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum 
  

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equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of
the Obligations and the termination of this Agreement. 
 10.06 Successors and Assigns. (a) Successors and
Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Borrower nor any other Loan Party may
assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Agent, the L/C Issuer and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an Eligible Assignee in accordance with the provisions of 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 (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. 

(b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such assignment is delivered to 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
Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (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 with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to rights in respect of Swing Line Loans; (iii) any
assignment of a Commitment must be approved by Agent, the L/C Issuer and Swing Line Lender (such approval not to be unreasonably withheld, conditioned or delayed) unless the Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment shall execute and deliver to Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 and the
Eligible Assignee, if it shall not be a Lender, shall deliver to Agent an Administrative Questionnaire. Subject to acceptance and recording thereof by Agent pursuant to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible 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

  

 71 








 
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section. 
 (c) Register. Agent, acting solely for
this purpose as an agent of Borrower, shall maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by each of
Borrower and the L/C Issuer, at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender may
request and receive from Agent a copy of the Register. 
 (d) Participations. Any Lender may at any time, without the
consent of, or notice to, Borrower or Agent, sell participations to any Person (other than a natural person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrower, Agent, the L/C
Issuer and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01. 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender. 
  

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 (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with Borrower’s prior written consent. 
 (f) Certain Pledges. Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. 

(g) 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. 
 (h) Deemed
Consent of Borrower. If the consent of Borrower to an assignment to an Eligible Assignee is required hereunder (including a consent to an assignment which does not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 10.06(b)), Borrower shall be deemed to have given its consent ten Business Days after the date notice thereof has been delivered to Borrower by the assigning Lender (through Agent) unless such consent is
expressly refused by Borrower prior to such tenth Business Day. 
 (i) Resignation as L/C Issuer or Swing Line Lender.
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 Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, Borrower shall be entitled to appoint from among Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by Borrower 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, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders to make Floating LIBOR 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 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 Floating
LIBOR Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties 
  

 73 








 
of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit. 

10.07 Treatment of Certain Information; Confidentiality. Each of Agent, Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors 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 National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to Borrower and its obligations, (g) with the consent of Borrower or
(h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than Borrower. For purposes of this Section, “Information” means all information received from Borrower or any Subsidiary relating to Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by Borrower or any Subsidiary, provided that, in the case of information received from
Borrower or any 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 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 Agent, the Lenders and the
L/C Issuer acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws. 

10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of Borrower or any other Loan Party against any and all of the
obligations of Borrower or such Loan Party 
  

 74 








 
now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or any such Affiliate, irrespective of whether or not such Lender or the L/C Issuer
shall have made any demand under this Agreement or any other Loan Document and although such obligations of Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from
the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify Borrower and 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 the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower. In determining whether the interest
contracted for, charged, or received by Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement 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 Agent and when 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 telecopy shall be effective as delivery of a manually executed counterpart of this Agreement. 
 10.11
Survival of Representations and Warranties. All representations and warranties made hereunder and in any other 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 Agent and each Lender, regardless of any investigation made by Agent or any Lender or on their behalf and notwithstanding that 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. 
  

 75 








 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 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 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA. 
 (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER
LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE WESTERN
DISTRICT, 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 NORTH CAROLINA 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 AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER 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 (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT. 
  

 76 








 (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02; PROVIDED, HOWEVER, THAT SERVICE OF PROCESS MAY NOT BE MADE BY TELECOPIER. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY APPLICABLE LAW. 
 10.14 Waiver of Right to Trial by Jury. 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. 
 10.15 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and
Agent (for itself and not on behalf of any Lender) hereby notifies 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 Borrower, which information includes the name and address of Borrower and other information that will allow such Lender or Agent, as applicable, to identify Borrower in accordance with the Act.

 10.16 Time of the Essence. Time is of the essence of the Loan Documents. 

 

 77 








 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written. 
  

			
	THE FRESH MARKET, INC.
		
	By:	 	 /s/ Michael J. Barry

	Name:	 	Michael J. Barry
	Title:	 	Executive Vice President /CFO


  

 Signature Page to 

Credit Agreement for 

The Fresh Market, Inc. 









			
	 BANK OF AMERICA, N.A., as

Administrative Agent

		
	By:	 	 /s/ Michael Brashler

	Name:	 	Michael Brashler
	Title:	 	Vice President


  

 Signature Page to 

Credit Agreement for 

The Fresh Market, Inc. 









			
	 BANK OF AMERICA, N.A., as a Lender,

L/C Issuer and Swing Line Lender

		
	By:	 	 /s/ J. Thomas Johnson, Jr

	Name:	 	J. Thomas Johnson, Jr
	Title:	 	Sr. Vice President


  

 Signature Page to 

Credit Agreement for 

The Fresh Market, Inc. 









			
	BRANCH BANKING AND TRUST COMPANY
		
	By:	 	 /s/ Jennifer L. Cudd

	Name:	 	Jennifer L. Cudd
	Title:	 	Senior Vice President


  

 Signature Page to 

Credit Agreement for 

The Fresh Market, Inc. 









			
	BMO CAPITAL MARKETS FINANCING, INC.
		
	By:	 	 /s/ C. Scott Place

	Name:	 	C. Scott Place
	Title:	 	Director


  

 Signature Page to 

Credit Agreement for 

The Fresh Market, Inc. 









			
	 FIRST HORIZON BANK, A DIVISION OF


FIRST TENNESSEE BANK NATIONAL
ASSOCIATION

		
	By:	 	 /s/ Stewart deC. Holmes

	Name:	 	Stewart deC. Holmes
	Title:	 	Senior Vice President


  

 Signature Page to 

Credit Agreement for 

The Fresh Market, Inc. 









			
	REGIONS BANK
		
	By:	 	 /s/ J. Reid Marks. Jr.

	Name:	 	J. Reid Marks. Jr.
	Title:	 	Market President


  

 Signature Page to 

Credit Agreement for 

The Fresh Market, Inc. 









			
	RBC CENTURA BANK, N.A.
		
	By:	 	 /s/ Michael H. Trainor

	Name:	 	Michael H. Trainor
	Title:	 	Vice President


  

 Signature Page to 

Credit Agreement for 

The Fresh Market, Inc. 








 SCHEDULE 2.01 

COMMITMENTS 

AND APPLICABLE PERCENTAGES 
  

							
	 Lender
	  	Commitment	  	Applicable
Percentage	 
			
	 Bank of America, N.A.
	  	$	46,000,000	  	26.285714287	% 
			
	 Branch Banking and Trust Company
	  	$	45,000,000	  	25.714285714	% 
			
	 BMO Capital Markets Financing, Inc.
	  	$	31,000,000	  	17.714285714	% 
			
	 First Horizon Bank, a Division of First Tennessee Bank National Association
	  	$	19,000,000	  	10.857142857	% 
			
	 Regions Bank
	  	$	19,000,000	  	10.857142857	% 
			
	 RBC Centura Bank, N.A.
	  	$	15,000,000	  	8.571428571	% 
			
	 Total
	  	$	175,000,000.00	  	100.000000000	% 

  

 1 








 SCHEDULE 5.06 

LITIGATION 

See litigation or potential litigation identified below. This Schedule 5.06 lists only pending litigation in which the maximum potential
liability to the Borrower may reasonably be expected to exceed $100,000.00 (for any individual matter and not in the aggregate). 
 Workers
Comp/Liability 
 Jeremy Hallmark 

Phillipe Torres (actual claim unknown and thus unable to estimate amount) 

Richard Vaughan (in process of closing out settlement) 

Alleged Discrimination/Retaliation 

Daria Aguillard 
 Rose Carlisle 

Doren Hall 
 Sherri Hall 

Casimiro Hernandez 
 Jason Hofacker 

Nicole Hunt 
 Lori Jarvis 

Eric Jones 
 Loretta Mallard 

Hatti Mayo 
 Nadia Muneer 

Gloria Thorpe 
 The Fresh Market believes all
these claims are without merit. 
 Other 

Total Renal Care/Otis Huntley (claim by health care provider for payment for services allegedly provided to participant in Borrower’s plan. Borrower
believes the claim is without merit). 
 The Fresh Market vs. Woolbright (North Naples lease dispute where Borrower is Plaintiff regarding
Landlord’s failure to perform; a counterclaim by Landlord is likely; Borrower believes any such counterclaim is without merit). 
 CBBC
Matters: The Fresh Market ceased taking deliveries under its supply agreement with CBBC and the parties are in the process of settling that account. CBBC has sued some former employees and their new employer relating to among other things The Fresh
Market’s account. 
  

 1 








 The Fresh Market is uncertain at this time as to what involvement if any it may have in this litigation.

  

 2 








 SCHEDULE 5.09 

ENVIRONMENTAL MATTERS 

None. 
  

 1 








 SCHEDULE 5.13 

SUBSIDIARIES AND 

OTHER EQUITY INVESTMENTS 

Part (a). Subsidiaries. The Borrower was the sole shareholder in Carolina Kitchen, Inc., a North Carolina corporation which was dissolved on
January 11, 2007. 
 Part (b). Other Equity Investments. The Borrower has an investment of or around $60,000 in Topco Holdings, Inc., a
co-operative buying group of which the Borrower is a member. 
  

 1 








 SCHEDULE 7.01 

EXISTING LIENS 

The Borrower has two copier leases, which are operating leases where the Borrower has no intention to purchase the equipment. However,
the leases provide for a security interest in the equipment and are evidenced by UCC filings with the North Carolina Secretary of State. The UCC filing numbers are 20050098004K and 20060068365H. Copies of such filings are attached to this Schedule
7.01. 
  

 1 









			
	 UCC FINANCING STATEMENT
  

FILER INFORMATION
	 	  

File Number: 20060068365H

Date Filed: 07/13/2006 09:49 AM

Elaine F. Marshall

NC Secretary of State

 


 CONTACT
INFORMATION FOR FILER: 

									
	CONTACT EMAIL	 	 CONTACT NAME

Ucc Direct Services
	 	CONTACT PHONE        	 	CONTACT FAX


SEND ACKNOWLEDGEMENT TO: 

									
	 PACKET #

NC-0-21406046000
	 	CLIENTS ACCOUNT #
	 ORGANIZATION NAME

Ucc Direct Services
	 	 	 	 	 	 	 	 
	
MAILING ADDRESS
 2727 Allen Parkway, Suite 1000,
P O Box 3248
	 	 CITY

Houston
	 	 STATE  

TX
	 	 POSTAL CODE  

77001

	COUNTY	 	 COUNTRY

USA


  

 
 FILE RECORD 

RECORD DATA (UNIQUE SEQUENTIAL ID: 0001) 
  

									
	 FILING TYPE

Initial
	 	 	 	 	 	 	 	 
	
FILERS UNIQUE ID
 NC-0-21406046-OEFS
631215
	 	 ALTERNATE NAME DESIGNATION

    Lessee-Lessor
	 	ALTERNATE FILING TYPE
	
ADDITIONAL INFORMATION

 


  

			
	LESSEE DATA	  	(UNIQUE SEQUENTIAL ID: 001)


															
	 1a.
ORGANIZATION NAME
 The Fresh Market, Inc.
	 	 
	2d. TAX ID#: SSN OR EIN  
  	 	 2e. TYPE OF ORGANIZATION  

 Corporation
	 	
2f. JURISDICTION OF        

NC
	 	
2g. ORGANIZATIONAL ID#, if any

0056763

	 1c.
MAILING ADDRESS
 628 GREEN VALLEY ROAD SUITE 500
	 	 CITY

GREENSBORO
	 	 STATE

NC
	 	 POSTAL CODE

27408

	COUNTY	 	 	 	 COUNTRY

USA
	 	 ALTERNATIVE CAPACITY OF DEBTOR

 NOAltCapacity


  

			
	LESSOR DATA	  	(UNIQUE SEQUENTIAL ID: 001)


									
	 3a. ORGANIZATION NAME

US BANCORP

	 3c.
MAILING ADDRESS
 1310 MADRID STREET STE 101
	 	 CITY

MARSHALL
	 	 STATE

MN
	 	 POSTAL CODE

56258

	COUNTY	 	 COUNTRY

USA









 4. This FINANCING STATEMENT covers the following collateral: 

 
 THIS FILING IS FOR INFORMATIONAL PURPOSES ONLY.

 LEASE # 631215 

1109428    COPIERS    5500724Y    S4501 

1109429    COPIERS    5500724YCLR    S4501 

 








					
	  
 UCC FINANCING STATEMENT

 
  
 FILER
INFORMATION
	 		 	
File Number: 20050098004K

Date Filed: 10/13/2005 03:29 PM

Elaine F. Marshall

Secretary of State



CONTACT INFORMATION FOR FILER: 
  

							
	CONTACT EMAIL	  	CONTACT NAME	  	CONTACT PHONE        	  	CONTACT FAX
	 	  	Ucc Direct Services	  	 	  	 


SEND ACKNOWLEDGEMENT TO: 
  

									
	 PACKET
#
 NC-0-16158268
	  	CLIENTS ACCOUNT #	  	 	  	 	  	 
	
ORGANIZATION NAME
 Ucc Direct
Services

	 MAILING ADDRESS

2727 Allen Parkway, Suite 1000, P O Box 3248
	  	
CITY                    

Houston
	  	 STATE    

TX
	  	 POSTAL CODE    

 77001

	COUNTY	  	 COUNTRY

USA
	  	 	  	 	  	 

  

 
 FILE RECORD 

RECORD DATA (UNIQUE SEQUENTIAL ID:0001) 
  

											
	 FILING
TYPE
 Initial
	  	 	  	 	  	 	  	 	  	 


											
	
FILERS UNIQUE ID
 NC-0-16158268-OEFS
551336
	  	 ALTERNATE NAME DESIGNATION

  Lessee-Lessor
	  	ALTERNATE FILING
TYPE


											
	
ADDITIONAL INFORMATION

 



											
				
	LESSEE DATA	  	                (UNIQUE SEQUENTIAL ID: 001 )	  		  	


											
	
1a. ORGANIZATION NAME
 The Fresh Market, Inc.


	2d. TAX ID #: SSN OR EIN 
	 	
2e. TYPE OF ORGANIZATION 

Corporation
	 	 2f. JURISDICTION OF 

NC
	 	 2g.
ORGANIZATIONAL ID#, If any
 0056763



											
	 1c. MAILING ADDRESS

628 GREEN VALLEY ROAD SUITE 500
	  	 CITY

GREENSBORO
	  	STATE     NC	  	POSTAL CODE    
27408


											
	COUNTY	  	
COUNTRY                    

USA
	  	 ALTERNATIVE CAPACITY OF DEBTOR

 NOAltCapacity



											
	LESSOR DATA	  	                (UNIQUE SEQUENTIAL ID:
001)


											
	 3a.
ORGANIZATION NAME
 US BANCORP
	  	 	  	 	  	 	  	 	  	 


											
	 3c. MAILING ADDRESS

1310 MADRID STREET STE 101
	  	 CITY

MARSHALL        
	  	 STATE        

MN
	  	 POSTAL CODE    

56258



											
	COUNTY	  	
COUNTRY
 USA









 4. This FINANCING STATEMENT covers the following collateral: 

 
 THIS FILING IS FOR INFORMATIONAL PURPOSES ONLY.

 LEASE # 551336 
 SHARP ARM550N
NETWORK COPIER/FAX/PRINTER/SCANNER 
  







 SCHEDULE 7.03 

EXISTING INDEBTEDNESS 

To be determined at closing. 
  

 1 








 SCHEDULE 10.02 

ADMINISTRATIVE AGENT’S OFFICE; 

CERTAIN ADDRESSES FOR NOTICES 
  

							
	BORROWER:
	  
 The Fresh Market, Inc.

628 Green Valley Road
 Suite 500

Greensboro, NC 27408
 Attention: Michael J. Barry

 Telephone: (336) 272-1338

Telecopier: (336) 272-1664
 Electronic Mail:
MikeBarry@thefreshmarket.net
 Website Address: www.thefreshmarket.com

U.S. Taxpayer Identification Number(s): 56-1311233

	  
 Agency
Team
  

	Your contacts in Agency Servicing:
		
	Closer	  	Randy Pino (borrowing/repaying activity)
		  	Officer	 	
		  	Telephone:	 	704-386-9068
		  	Fax:	 	704-409-0319
		  	            Randy.s.pino@bankofamerica.com
		
	Primary Servicer	  	Rose Bollard
		  	Telephone:	 	704-386-2881	  	
		  	Fax:	 	704-409-0355	  	
		  	rose.bollard@bankofamerica.com
				
	Backup Servicer	  	Jean Hood	 		  	
		  	Officer	 		  	
		  	Telephone:	 	704-388-9114	  	
		  	Fax:	 	704-719-8162	  	
				
	Wire Instructions:	  		 		  	
			
		  	Bank of America, N.A.	  	ABA #: 026-009-593
		  	New York, NY	  	Acct.#: 136-621-225-0600
		  		 		  	Attn:     Credit Services
		  		 		  	Ref:      The Fresh Market, Inc.

  

 1 








 Your contacts in Agency Management: 

 

					
	Primary	  	Laura Call                     (financial reporting requirements,

		  	Agency Officer                     bank group
communications)
		  	Bank of America
		  	231 South LaSalle Street
		  	Chicago, Illinois 60604
		  	Mail Code: IL1-231-10-41
		  	Telephone: (312) 828-3559
		  	Fax:           (877) 207-2883
		  	Email: laura.call@bankofamerica.com
		
	Secondary	  	Felicia Brinson
		  	Agency Officer
		  	Telephone:	 	(312) 828-7299
		  	Fax:	 	(877) 216-2432
		  	Email: felicia.brinson@bankofamerica.com
	
	Your Contact for Issuing Letters of Credit:
		
	Primary	  	Trade Operations - Los Angeles
		  	1000 W Temple Street
		  	Mail Code: CA9-705-07-05
		  	Los Angeles, CA 90012-1514
		  	Attention:	 	Tai Anh Lu
		  		 	Officer
		  		 	Telephone: (213) 481-7840
		  		 	Fax: (213) 580-8442
		  		 	Email: tai_anh.lu@bankofamerica.com
		
	Secondary	  	Teela Phuong Yung
		  	Assistant Vice President
		  	Telephone: (213) 580-8363
		  	Fax: (213) 580-8440
		  	Email: teela.p.yung@bankofamerica.com

  

 2 








 EXHIBIT A 

FORM OF COMMITTED LOAN NOTICE 

Date:                    
,         
  

	To:	Bank of America, N.A., as Agent 

 Ladies and
Gentlemen: 
 Reference is made to that certain Credit Agreement, dated as of February    , 2007 (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 Fresh Market, Inc., a North Carolina
corporation (the “Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. 

The undersigned hereby requests (select one): 
  

	 	 ̈	A Borrowing of Committed Loans
                     ̈    A conversion or continuation of Loans


  

							
	 1.
	 	
On                       
                                         
                                      (a Business
Day).
	 	
			
	 2.
	 	 In the amount of
$                                         
                                   .      
                   
	 	
			
	 3.
	 	 Comprised
of                                        
                                         
   .                          
	 	
		 	                         [Type of
Committed Loan requested]	 	
		
	 4.
	 	For Eurodollar Rate Loans: with an Interest Period of              months.


The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01 of the
Agreement. 
  

			
	THE FRESH MARKET, INC.
		
	 By:
	 	
 





			
	 Name:
	 	
 





			
	 Title:
	 	  




 

 A-1 








 EXHIBIT B 

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 Credit Agreement, dated as of February     , 2007 (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 Fresh Market, Inc., a North Carolina corporation (the
“Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. 

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. 
  

			
	 THE FRESH MARKET, INC.

		
	 By:
	 	
 





			
	 Name:
	 	
 





			
	 Title:
	 	  




 

 B-1 








 EXHIBIT C 

FORM OF NOTE 
  

			
	
$                        
        
	 	February     , 2007


FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to
                                         or
registered assigns (“Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to Borrower under that certain Credit Agreement,
dated as of February    , 2007 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. 

Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is
paid in full, at such interest rates and at such times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made
to 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 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 Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. 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 Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto. 
 Borrower, for
itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note. 

 

 C-1 








 THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NORTH CAROLINA. 
  

			
	THE FRESH MARKET, INC.
		
	By:	 	  




			
	Name:	 	  




			
	Title:	 	  




 

 C-2 








 LOANS AND PAYMENTS WITH RESPECT THERETO 

 

													
	 Date
	 	 Type of
Loan Made
	 	 Amount of
Loan Made
	 	 End of

Interest

Period
	 	 Amount of

Principal or

Interest

Paid This

Date
	 	 Outstanding
Principal

Balance

This Date
	 	 Notation

Made By

							
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 
		 		 		 		 		 		 	
	 	 	 	 	 	 	 	 	 	 	 	 	 

  

 C-3 








 EXHIBIT D 

FORM OF COMPLIANCE CERTIFICATE 

Financial Statement Date:             , 

 

	To:	Bank of America, N.A., as Administrative Agent 


Ladies and Gentlemen: 

Reference is made to that certain Credit Agreement, dated as of February     , 2007 (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 Fresh Market, Inc., a North Carolina corporation
(“Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. 

The undersigned Responsible Person hereby certifies as of the date hereof that he/she is the
                                         of
Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to Agent on the behalf of Borrower, and that: 

[Use following paragraph 1 for fiscal year-end financial statements] 

1. Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the
Agreement for the fiscal year of Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section. 

[Use following paragraph 1 for fiscal quarter-end financial statements] 

1. Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Agreement
for the fiscal quarter of Borrower ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence of footnotes. 
 2. The undersigned has reviewed
and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of Borrower during the accounting period covered by the
attached financial statements. 
 3. A review of the activities of Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period Borrower performed and observed all its Obligations under the Loan Documents, and 

 

 D-1 








 [select one:] 

[to the best knowledge of the undersigned during such fiscal period, Borrower performed and observed each covenant and condition of
the Loan Documents applicable to it, and no Default has occurred and is continuing.] 
 —or—

 [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 Borrower contained in Article V
of the Agreement, and/or any representations and warranties of Borrower or any other 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 clauses (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 2 attached hereto are true and accurate on and as of the
date of this Certificate. 
 IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
                         ,             . 

 

			
	THE FRESH MARKET, INC.
		
	By:	 	  

		
	Name:	 	  

		
	Title:	 	  




 

 D-2 








 For the Quarter/Year ended
                                        
(“Statement Date”) 
 SCHEDULE 2 

to the Compliance Certificate 
  

 D-3 








 EXHIBIT E 

FORM 

OF 

ASSIGNMENT AND ASSUMPTION 

[THIS EXHIBIT E IS A BANK OF AMERICA PREFERENCE OR POLICY. Do not alter without the approval of the Legal Department and Commercial Agency
Management.] 
 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 [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined
herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex
1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. 

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably
purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Agent as contemplated below (i) all of the Assignor’s rights and
obligations as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of
the Assignor 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) 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 pursuant to clauses (i) and (ii) above being referred to herein collectively as, the
“Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor. 

 

	1.	Assignor:                          
                                         
  

  

	2.	Assignee:                          
                                         
  [and is an Affiliate of [identify Lender]] 

  

	3.	Borrower(s):                         
                                       


  

	4.	Administrative Agent: Bank of America, N. A., as the administrative agent under the Credit Agreement 


 

 E-1 









	5.	Credit Agreement:        [Credit Agreement, dated as of
            , among                     , the Lenders from time to time party thereto,
Bank of America, N.A., as Administrative Agent[, L/C Issuer and Swing Line Lender]] 

  

	6.	Assigned Interest: 

  

									
	 Facility Assigned
	 	 Aggregate

Amount of

Commitment/Loans

for all Lenders*
	 	 Amount of

Commitment/Loans

Assigned*
	 	 Percentage

Assigned of

Commitment/Loans
	 	 CUSIP No.

	  
	 	
$                        
            
	 	
$                        
            
	 	
                        
                %
	 	  

	  
	 	
$                        
            
	 	
$                        
            
	 	
                        
                %
	 	  

	  
	 	
$                        
            
	 	
$                        
            
	 	
                        
                %
	 	  



 

	[7.	Trade
Date:                                    ]


 Effective Date:
                            , 20         [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] 
 The
terms set forth in this Assignment and Assumption are hereby agreed to: 
  

			
	ASSIGNOR
	
	[NAME OF ASSIGNOR]
		
	By:	 	  

		 	        Title:
	
	ASSIGNEE
	
	[NAME OF ASSIGNEE]
		
	By:	 	  

		 	        Title:


  

 E-2 









			
	 [Consented to and] Accepted:

	
	 BANK OF AMERICA, N.A., as Administrative Agent

		
	By:	 	  

		 	        Title:
	
	[Consented to:]
		
	By:	 	  

		 	        Title:

  

 E-3 








 ANNEX 1 TO ASSIGNMENT AND ASSUMPTION 

STANDARD TERMS AND CONDITIONS FOR 

ASSIGNMENT AND ASSUMPTION 

1. Representations and Warranties. 

1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest,
(ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (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 (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 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 Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. 

1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit
Agreement (subject to receipt of such consents as may be required under 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
Assigned Interest, shall have the obligations of a Lender thereunder, and (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section [    ]
thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it
has made such analysis and decision independently and without reliance on Agent or any other Lender; and (b) agrees that (i) it will, independently and without reliance on Agent, the 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. 
 2. Payments. From and
after the Effective Date, Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to
the Assignee for amounts which have accrued from and after the Effective Date. 
  

 E-4 








 3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with,
the law of the State of
                                        
[confirm that choice of law provision parallels the Credit Agreement]. 
  

 E-5