bandwidthkeybankcreditan






   ===================================================================== =====================================================================                                                                                                                                                                                                                                                                                                                                                        CREDIT AND SECURITY AGREEMENT                                                                                                                        among                                                                                                                  BANDWIDTH INC.                                   as Borrower                             THE LENDERS NAMED HEREIN                                    as Lenders                                           and                                                                                                         KEYBANK NATIONAL ASSOCIATION              as Administrative Agent, Swing Line Lender and Issuing Lender                                                                KEYBANC CAPITAL MARKETS INC.                      as Sole Lead Arranger and Sole Book Runner                                                                                                                                                                                                                                                                                      _____________________                              dated as of November 4, 2016,                     as amended and restated as of March 1, 2019                              _____________________                                               ===================================================================== =====================================================================      





 






                            TABLE OF CONTENTS                                                                                                                    Page                                                                                  ARTICLE I.  DEFINITIONS ......................................................................................................... 2    Section 1.1.  Definitions ............................................................................................................. 2    Section 1.2.  Accounting Terms ............................................................................................... 31    Section 1.3.  Terms Generally .................................................................................................. 31  ARTICLE II.  AMOUNT AND TERMS OF CREDIT ................................................................ 31    Section 2.1.  Amount and Nature of Credit .............................................................................. 31    Section 2.2.  Revolving Credit Commitment ........................................................................... 32    Section 2.3.  Term Loan Commitment ..................................................................................... 38    Section 2.4.  Interest ................................................................................................................. 38    Section 2.5.  Evidence of Indebtedness .................................................................................... 39    Section 2.6.  Notice of Loans and Credit Events; Funding of Loans ....................................... 40    Section 2.7.  Payment on Loans and Other Obligations ........................................................... 41    Section 2.8.  Prepayment .......................................................................................................... 43    Section 2.9.  Commitment and Other Fees ............................................................................... 44    Section 2.10.  Modifications to Commitment .......................................................................... 44    Section 2.11.  Computation of Interest and Fees ...................................................................... 46    Section 2.12.  Mandatory Payments ......................................................................................... 46    Section 2.13.  Swap Obligations Keepwell Provision .............................................................. 49  ARTICLE III.  ADDITIONAL PROVISIONS RELATING TO EURODOLLAR LOANS;  INCREASED CAPITAL; TAXES ............................................................................................... 49    Section 3.1.  Requirements of Law .......................................................................................... 49    Section 3.2.  Taxes ................................................................................................................... 51    Section 3.3.  Funding Losses .................................................................................................... 54    Section 3.4.  Change of Lending Office ................................................................................... 55    Section 3.5.  Eurodollar Rate Lending Unlawful; Inability to Determine Rate ....................... 55    Section 3.6.  Replacement of Lenders ...................................................................................... 56    Section 3.7.  Discretion of Lenders as to Manner of Funding.................................................. 56  ARTICLE IV.  CONDITIONS PRECEDENT ............................................................................. 57    Section 4.1.  Conditions to Each Credit Event ......................................................................... 57    Section 4.2.  Deliveries Made in Connection with the Original Credit Agreement ................. 57    Section 4.3.  Conditions to Restatement ................................................................................... 59    Section 4.4.  Post-Closing Conditions ...................................................................................... 60  ARTICLE V.  COVENANTS....................................................................................................... 60    Section 5.1.  Insurance ............................................................................................................. 61    Section 5.2.  Money Obligations .............................................................................................. 61    Section 5.3.  Financial Statements and Information ................................................................. 61    Section 5.4.  Financial Records ................................................................................................ 62    Section 5.5.  Franchises; Change in Business .......................................................................... 63    Section 5.6.  ERISA Pension and Benefit Plan Compliance .................................................... 63    Section 5.7.  Financial Covenants ............................................................................................ 63    Section 5.8.  Borrowing ............................................................................................................ 64    Section 5.9.  Liens .................................................................................................................... 65    Section 5.10.  Regulations T, U and X ..................................................................................... 66                                         i  





 






                            TABLE OF CONTENTS                                                                                                                    Page                                                                                    Section 5.11.  Investments, Loans and Guaranties ................................................................... 66    Section 5.12.  Merger and Sale of Assets ................................................................................. 68    Section 5.13.  Acquisitions ....................................................................................................... 68    Section 5.14.  Notice ................................................................................................................ 69    Section 5.15.  Restricted Payments .......................................................................................... 69    Section 5.16.  Environmental Compliance ............................................................................... 70    Section 5.17.  Affiliate Transactions ........................................................................................ 70    Section 5.18.  Use of Proceeds ................................................................................................. 71    Section 5.19.  Corporate Names and Locations of Collateral .................................................. 71    Section 5.20.  Subsidiary Guaranties, Security Documents and Pledge of Stock or Other                Ownership Interest ........................................................................................... 71    Section 5.21.  Collateral ........................................................................................................... 73    Section 5.22.  Property Acquired Subsequent to the Closing Date and Right to Take                Additional Collateral ........................................................................................ 75    Section 5.23.  Restrictive Agreements ..................................................................................... 75    Section 5.24.  Other Covenants and  Provisions ...................................................................... 76    Section 5.25.  FCC Approval ................................................................................................... 76    Section 5.26.  Amendment of Organizational Documents ....................................................... 76    Section 5.27.  Fiscal Year of the Borrower .............................................................................. 76    Section 5.28.  Banking Relationship ........................................................................................ 76    Section 5.29.  Further Assurances ............................................................................................ 76  ARTICLE VI.  REPRESENTATIONS AND WARRANTIES ................................................... 77    Section 6.1.  Corporate Existence; Subsidiaries; Foreign Qualification .................................. 77    Section 6.2.  Corporate Authority ............................................................................................ 77    Section 6.3.  Compliance with Laws and Contracts ................................................................. 77    Section 6.4.  Litigation and Administrative Proceedings ......................................................... 78    Section 6.5.  Title to Assets ...................................................................................................... 78    Section 6.6.  Liens and Security Interests ................................................................................ 78    Section 6.7.  Tax Returns ......................................................................................................... 79    Section 6.8.  Environmental Laws ............................................................................................ 79    Section 6.9.  Locations ............................................................................................................. 79    Section 6.10.  Continued Business ........................................................................................... 80    Section 6.11.  Employee Benefits Plans ................................................................................... 80    Section 6.12.  Consents or Approvals ...................................................................................... 80    Section 6.13.  Solvency ............................................................................................................ 81    Section 6.14.  Financial Statements .......................................................................................... 81    Section 6.15.  Regulations ........................................................................................................ 81    Section 6.16.  Material Agreements ......................................................................................... 81    Section 6.17.  Intellectual Property .......................................................................................... 82    Section 6.18.  Insurance ........................................................................................................... 82    Section 6.19.  Deposit Accounts and Securities Accounts ....................................................... 82    Section 6.20.  Accurate and Complete Statements ................................................................... 82    Section 6.21.  Investment Company; Other Restrictions ......................................................... 82    Section 6.22.  Defaults ............................................................................................................. 82                                          ii  





 






                            TABLE OF CONTENTS                                                                                                                    Page                                                                                  ARTICLE VII. SECURITY.......................................................................................................... 82    Section 7.1.  Security Interest in Collateral .............................................................................. 82    Section 7.2.  Collections and Receipt of Proceeds by Borrower .............................................. 83    Section 7.3.  Collections and Receipt of Proceeds by Administrative Agent .......................... 84    Section 7.4.  Administrative Agent’s Authority Under Pledged Notes .................................... 85    Section 7.5.  Commercial Tort Claims ..................................................................................... 86    Section 7.6.  Use of Inventory and Equipment ......................................................................... 86  ARTICLE VIII.  EVENTS OF DEFAULT .................................................................................. 86    Section 8.1.  Payments ............................................................................................................. 86    Section 8.2.  Special Covenants ............................................................................................... 86    Section 8.3.  Other Covenants .................................................................................................. 86    Section 8.4.  Representations and Warranties .......................................................................... 87    Section 8.5.  Cross Default ....................................................................................................... 87    Section 8.6.  ERISA Default .................................................................................................... 87    Section 8.7.  Change in Control ............................................................................................... 87    Section 8.8.  Judgments ............................................................................................................ 87    Section 8.9.  Security ................................................................................................................ 88    Section 8.10.  Validity of Loan Documents ............................................................................. 88    Section 8.11.  Solvency ............................................................................................................ 88  ARTICLE IX.  REMEDIES UPON DEFAULT .......................................................................... 89    Section 9.1.  Optional Defaults ................................................................................................ 89    Section 9.2.  Automatic Defaults .............................................................................................. 89    Section 9.3.  Letters of Credit ................................................................................................... 89    Section 9.4.  Offsets ................................................................................................................. 90    Section 9.5.  Equalization Provisions ....................................................................................... 90    Section 9.6.  Collateral ............................................................................................................. 92    Section 9.7.  Other Remedies ................................................................................................... 92    Section 9.8.  Application of Proceeds ...................................................................................... 93  ARTICLE X.  THE ADMINISTRATIVE AGENT ..................................................................... 94    Section 10.1.  Appointment and Authorization ........................................................................ 94    Section 10.2.  Note Holders ...................................................................................................... 95    Section 10.3.  Consultation With Counsel ............................................................................... 95    Section 10.4.  Documents ......................................................................................................... 95    Section 10.5.  Administrative Agent and Affiliates ................................................................. 96    Section 10.6.  Knowledge or Notice of Default ....................................................................... 96    Section 10.7.  Action by Administrative Agent ....................................................................... 96    Section 10.8.  Release of Collateral or Guarantor of Payment ................................................. 96    Section 10.9.  Delegation of Duties .......................................................................................... 97    Section 10.10.  Indemnification of Administrative Agent ....................................................... 97    Section 10.11.  Successor Administrative Agent ..................................................................... 97    Section 10.12.  Issuing Lender ................................................................................................. 98    Section 10.13.  Swing Line Lender .......................................................................................... 98    Section 10.14.  Administrative Agent May File Proofs of Claim ............................................ 98    Section 10.15.  No Reliance on Administrative Agent’s Customer Identification Program .... 99                                         iii  





 






                            TABLE OF CONTENTS                                                                                                                    Page                                                                                    Section 10.16.  Other Agents .................................................................................................... 99  ARTICLE XI.  MISCELLANEOUS ............................................................................................ 99    Section 11.1.  Lenders’ Independent Investigation .................................................................. 99    Section 11.2.  No Waiver; Cumulative Remedies .................................................................. 100    Section 11.3.  Amendments, Waivers and Consents .............................................................. 100    Section 11.4.  Notices ............................................................................................................. 102    Section 11.5.  Costs, Expenses and Documentary Taxes ....................................................... 102    Section 11.6.  Indemnification ............................................................................................... 102    Section 11.7.  Obligations Several; No Fiduciary Obligations .............................................. 103    Section 11.8.  Execution in Counterparts ............................................................................... 103    Section 11.9.  Binding Effect; Borrower’s Assignment ......................................................... 103    Section 11.10.  Lender Assignments ...................................................................................... 103    Section 11.11.  Sale of Participations ..................................................................................... 105    Section 11.12.  Replacement of Affected Lenders ................................................................. 106    Section 11.13.  Patriot Act Notice .......................................................................................... 107    Section 11.14.  Severability of Provisions; Captions; Attachments ....................................... 107    Section 11.15.  Investment Purpose ....................................................................................... 107    Section 11.16.  Entire Agreement .......................................................................................... 107    Section 11.17.  Confidentiality ............................................................................................... 108    Section 11.18.  Limitations on Liability of the Issuing Lender .............................................. 108    Section 11.19.  General Limitation of Liability ..................................................................... 109    Section 11.20.  No Duty ......................................................................................................... 109    Section 11.21.  Legal Representation of Parties ..................................................................... 109    Section 11.22.  Acknowledgement and Consent to Bail-In of EEA Financial Institutions ... 109    Section 11.23.  Governing Law; Submission to Jurisdiction ................................................. 110    Jury Trial Waiver ............................................................................................... Signature page 1      Exhibit A     Form of Revolving Credit Note  Exhibit B     Form of Swing Line Note  Exhibit C     Form of Term Note  Exhibit D     Form of Notice of Loan  Exhibit E     Form of Compliance Certificate  Exhibit F     Form of Assignment and Acceptance Agreement  Exhibit G-1   Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not                     Partnerships For U.S. Federal Income Tax Purposes)  Exhibit G-2   Form of U.S. Tax Compliance Certificate (For Foreign Participants That                     Are Not Partnerships For U.S. Federal Income Tax Purposes)  Exhibit G-3   Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are                     Partnerships For U.S. Federal Income Tax Purposes)  Exhibit G-4   Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are                     Partnerships For U.S. Federal Income Tax Purposes)                                          iv  





 






                            TABLE OF CONTENTS                                                                                                                    Page                                                                                  Schedule 1    Commitments of Lenders  Schedule 2    Guarantors of Payment  Schedule 3    Pledged Securities  Schedule 5.8  Indebtedness  Schedule 5.9  Liens  Schedule 6.1  Corporate Existence; Subsidiaries; Foreign Qualification  Schedule 6.4  Litigation and Administrative Proceedings  Schedule 6.9  Locations  Schedule 6.11  Employee Benefits Plans  Schedule 6.12  Consents or Approvals  Schedule 6.16  Material Agreements  Schedule 6.17  Intellectual Property  Schedule 6.18  Insurance  Schedule 6.19  Deposit Accounts and Securities Accounts  Schedule 7.4  Pledged Notes  Schedule 7.5  Commercial Tort Claims                                              v  





 






         This CREDIT AND SECURITY AGREEMENT (as the same may from time to time be  amended,  restated  or  otherwise  modified,  this  “Agreement”)  is  dated  November  4,  2016,  as  amended and restated the 1st day of March, 2019 among:                (a)   BANDWIDTH INC. (f/k/a Bandwidth.com, Inc.), a Delaware corporation        (the “Borrower”);                      (b)   the lenders listed on Schedule 1 hereto and each other Eligible Transferee,        as hereinafter defined, that from time to time becomes a party hereto pursuant to Section        2.10(b) or 11.10 hereof (collectively, the “Lenders” and, individually, each a “Lender”);        and                      (c)   KEYBANK     NATIONAL    ASSOCIATION,     a  national  banking        association,  as  the  administrative  agent  for  the  Lenders  under  this  Agreement  (the        “Administrative Agent”), the Swing Line Lender and the Issuing Lender.                                              WITNESSETH:          WHEREAS,  the  Borrower,  the  Administrative  Agent  and  the  lenders  named  therein  entered  into  that  certain  Credit  and  Security  Agreement,  dated  as  of  November  4,  2016  (the  “Original Credit Agreement”);          WHEREAS,  this  Agreement  amends  and  restates  in  its  entirety  the  Original  Credit  Agreement  and,  upon  the  effectiveness  of  this  Agreement,  the  terms  and  provisions  of  the  Original Credit Agreement shall be superseded  hereby.  All references to “Credit Agreement”  contained in the Loan Documents, delivered in connection with the Original Credit Agreement,  shall be deemed to refer to this Agreement.  In connection with the amendment and restatement  of the Original Credit Agreement by this Agreement, at the request of the Borrower pursuant to  Section 2.10 hereof, on the Restatement Date, the Revolving Credit Commitment (as in effect  immediately prior to this Agreement) shall be reduced to zero dollars ($0.00), and immediately  thereafter,  effective upon  the execution  of  this  Agreement,  the  Revolving  Credit  Commitment  shall be increased to Twenty-Five Million Dollars ($25,000,000).  All Obligations, as defined in  the Original Credit Agreement, and the guaranties of payment thereof, shall in all other respects  be  continuing,  and  this  Agreement  shall  not  be deemed  to  evidence  or result  in  a  novation  or  repayment  and  re-borrowing  of  such  Obligations.   In  furtherance  of  and,  without  limiting  the  foregoing,  from  and  after  the  date  hereof  and  except  as  expressly  specified  herein,  the  terms,  conditions,  and  covenants  governing  the  obligations  outstanding  under  the  Original  Credit  Agreement  shall  be  solely  as  set  forth  in  this  Agreement,  which  shall  supersede  the  Original  Credit Agreement in its entirety;          WHEREAS, the Borrower, the Administrative Agent and the Lenders desire to contract  for  the  establishment  of  credits  in  the  aggregate  principal  amounts  hereinafter  set  forth,  to  be  made available to the Borrower upon the terms and subject to the conditions hereinafter set forth;        





 






         WHEREAS, it is the intent of the Borrower, the Administrative Agent and the Lenders  that the provisions of this Agreement be effective commencing on the Restatement Date; and          NOW, THEREFORE, it is mutually agreed as follows:                                 ARTICLE I.  DEFINITIONS                                                 Section 1.1.  Definitions.  As used in this Agreement, the following terms shall have the  meanings set forth below:          “Account” means an account, as that term is defined in the U.C.C.          “Account Debtor” means an account debtor, as that term is defined in the U.C.C., or any  other Person obligated to pay all or any part of an Account in any manner and includes (without  limitation) any Guarantor thereof.          “Acquisition” means any transaction or series of related transactions for the purpose of or  resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of any  Person  (other  than  a  Company),  or  any  business  or  division  of  any  Person  (other  than  a  Company), (b) the acquisition of in excess of fifty percent (50%) of the outstanding capital stock  (or other equity interest) of any Person (other than a Company), or (c) the acquisition of another  Person  (other  than  a  Company)  by  a  merger,  amalgamation  or  consolidation  or  any  other  combination with such Person.          “Additional Commitment” means that term as defined in Section 2.10(b)(i) hereof.          “Additional Lender” means an Eligible Transferee that shall become a Lender during the  Commitment Increase Period pursuant to Section 2.10(b) hereof.          “Additional  Lender  Assumption  Agreement”  means  an  additional  lender  assumption  agreement,  in  form  and  substance  satisfactory  to  the  Administrative  Agent,  wherein  an  Additional Lender shall become a Lender.          “Additional  Lender Assumption Effective Date” means that term  as defined in Section  2.10(b)(ii) hereof.          “Additional Term Loan Facility” means that term as defined in Section 2.10(b)(i) hereof.          “Additional  Term  Loan  Facility  Amendment”  means  that  term  as  defined  in  Section  2.10(c)(ii) hereof.          “Administrative  Agent”  means  that  term  as  defined  in  the  first  paragraph  of  this  Agreement.                                            2  





 






         “Administrative  Agent  Fee  Letter”  means  the  Fee  Letter  between  the  Borrower,  the  Administrative Agent and KeyBanc Capital Markets Inc., dated as of March 1, 2019.          “Advantage” means any payment (whether made voluntarily or involuntarily, by offset  of  any  deposit  or  other  indebtedness  or  otherwise)  received  by  any  Lender  (a)  prior  to  an  Equalization  Event,  in  respect  of  the  Applicable  Debt,  if  such  payment  results  in  that  Lender  having less than its  pro  rata share (based upon its Applicable Commitment  Percentage) of the  Applicable Debt then outstanding, and (b) on and after an Equalization Event, in respect of the  Obligations, if such payment results in that Lender having less than its pro rata share (based upon  its Equalization Percentage) of the Obligations then outstanding.          “Affected Lender” means a Defaulting Lender or an Insolvent Lender.          “Affiliate” means  any Person, directly or indirectly, controlling, controlled by or under  common control with a Company and “control” (including the correlative meanings, the terms  “controlling”, “controlled by” and “under common control with”) means the power, directly or  indirectly,  to  direct  or  cause  the  direction  of  the  management  and  policies  of  a  Company,  whether through the ownership of voting securities, by contract or otherwise.          “Aggregate Increase Amount” means that term as defined in Section 2.10(b)(i) hereof.          “Agreement” means that term as defined in the first paragraph of this agreement.            “Anti-Corruption  Laws”  means  all  laws,  rules,  and  regulations  of  any  jurisdiction  applicable to the Companies from time to time concerning or relating to bribery or corruption  (including, without limitation, the Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. §  78dd-1, et seq.), as amended, and the rules and regulations thereunder).          “Applicable Commitment Fee Rate” means twenty-five (25.00) basis points.                “Applicable Commitment Percentage” means, for each Lender:                      (a)   with respect to the Revolving Credit Commitment, the percentage, if any,        set  forth  opposite  such  Lender’s  name  under  the  column  headed  “Revolving  Credit        Commitment  Percentage”,  as  set  forth  on  Schedule  1  hereto,  subject  to assignments  of        interests pursuant to Section 11.10 hereof, reductions pursuant to Section 2.10(a) hereof        and increases pursuant to Section 2.10(b) hereof; and                      (b)   with respect to the Term Loan Commitment (or the Term Loan if the Term        Loan Commitment is no longer in effect), the percentage, if any, set forth opposite such        Lender’s name under the column headed “Term Loan Commitment Percentage”, as set        forth on Schedule 1 hereto, subject to assignments of interests pursuant to Section 11.10        hereof.                                                  3  





 






         “Applicable Debt” means:                (a)   with  respect  to  the  Revolving  Credit  Commitment,  collectively,  (i)  all        Indebtedness  incurred  by  the  Borrower  to  the  Revolving  Lenders  pursuant  to  this        Agreement and the other Loan Documents, and includes, without limitation, the principal        of  and  interest  on  all  Revolving  Loans  and  all  Swing  Loans  and  all  obligations  with        respect to Letters of Credit, (ii) each extension, renewal or refinancing of the foregoing,        in whole or in part, (iii) the commitment and other fees and amounts payable hereunder in        connection  with  the  Revolving  Credit  Commitment,  and  (iv)  all  Related  Expenses        incurred in connection with the foregoing; and                      (b)   with  respect  to  the  Term  Loan  Commitment,  collectively,  (i)  all        Indebtedness incurred by the Borrower to the Term Lenders pursuant to this Agreement        and  the  other  Loan  Documents,  and  includes,  without  limitation,  the  principal  of  and        interest on the Term Loan, (ii) each extension, renewal or refinancing of the foregoing in        whole or in part, (iii) all fees and other amounts payable hereunder in connection with the        Term Loan Commitment, and (iv) all Related Expenses incurred in connection with the        foregoing.          “Applicable Margin” means two hundred twenty-five (225.00) basis points for Eurodollar  Loans and one hundred twenty-five (125.00) basis points for Base Rate Loans.          “Assignment Agreement” means an Assignment and Acceptance Agreement in the form  of the attached Exhibit F.          “Authorized  Officer”  means  a  Financial  Officer  or  other  individual  authorized  by  a  Financial  Officer  in  writing  (with  a  copy  to  the  Administrative  Agent)  to  handle  certain  administrative matters in connection with this Agreement.          “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.          “Bail-In  Legislation”  means,  with  respect  to  any  EEA  Member  Country  implementing  Article  55  of  Directive  2014/59/EU  of  the  European  Parliament  and  of  the  Council  of  the  European Union, the implementing law for such EEA Member Country from time to time that is  described in the EU Bail-In Legislation Schedule.          “Bailee’s Waiver” means a bailee’s waiver, in form and substance reasonably satisfactory  to the Administrative Agent, delivered by a Credit Party in connection with this Agreement, as  such waiver may from time to time be amended, restated or otherwise modified.          “Bank  Product  Agreements”  means  those  certain  cash  management  services  and  other  agreements entered into from time to time between a Company and the Administrative Agent or  a Lender (or an affiliate of a Lender) in connection with any of the Bank Products.                                            4  





 






         “Bank Product Obligations” means all obligations, liabilities, contingent reimbursement  obligations, fees and expenses owing by a Company to the Administrative Agent or any Lender  (or an affiliate of a Lender) pursuant to or evidenced by the Bank Product Agreements.          “Bank  Products”  means  a  service  or  facility  extended  to  a  Company  by  the  Administrative Agent or any Lender (or an affiliate of a Lender) for (a) credit cards and credit  card  processing  services,  (b)  debit  cards,  purchase  cards  and  stored  value  cards,  (c)  ACH  transactions, and (d) cash management, including controlled disbursement, accounts or services.            “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as  now or hereafter in effect, or any successor thereto, as hereafter amended.          “Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Prime  Rate, (b) one-half of one percent (0.50%) in excess of the Federal Funds Effective Rate, and (c)  one percent (1%) in excess of the London interbank offered rate for loans in Eurodollars for a  period of one month (or, if such day is not a Business Day, such rate as calculated on the most  recent  Business  Day).   Any  change  in  the  Base  Rate  shall  be effective  immediately  from  and  after such change in the Base Rate.  Notwithstanding the foregoing, if at any time the Base Rate  as  determined  above  is  less  than  zero,  it  shall  be  deemed  to  be  zero  for  purposes  of  this  Agreement.          “Base  Rate  Loan”  means  a  Revolving  Loan  described  in  Section 2.2(a)  hereof,  or  a  portion of the Term Loan described in Section 2.3 hereof, that shall be denominated in Dollars  and on which the Borrower shall pay interest at the Derived Base Rate.          “Borrower” means that term as defined in the first paragraph of this Agreement.          “Business Day” means a day that is not a Saturday, a Sunday or another day of the year  on which national banks are authorized or required to close in Cleveland, Ohio, and, in addition,  if  the  applicable  Business  Day  relates  to  a  Eurodollar  Loan,  is  a  day  of  the  year  on  which  dealings in Dollar deposits are carried on in the London interbank Eurodollar market.          “Capital  Distribution”  means  a payment  made,  liability  incurred  or  other  consideration  given  by  a  Company  to  any  Person  that  is  not  a  Company,  (a)  for  the  purchase,  acquisition,  redemption,  repurchase,  payment  or  retirement  of  any  capital  stock  or  other  equity  interest  of  such Company, or (b) as a dividend, return of capital or other distribution (other than any stock  dividend,  stock  split,  restricted  stock  award  under  any  such  Company’s  equity  compensation   plans, stock distribution in connection with an Acquisition permitted by Section 5.13 hereof, or  other  equity  distribution,  in  each  case  payable  only  in  capital  stock  or  other  equity  of  such  Company) in respect of such Company’s capital stock or other equity interest.          “Capitalized Lease Obligations” means obligations of the Companies for the payment of  rent for any real or personal property under leases or agreements to lease that, in accordance with  GAAP, have been or should be capitalized on the books of the lessee and, for purposes hereof,  the  amount  of  any  such  obligation  shall  be  the  capitalized  amount  thereof  determined  in  accordance  with  GAAP.   Notwithstanding  the  foregoing,  any  lease  which  is  required  to  be                                          5  





 






   characterized as an operating lease under GAAP as in effect on the Closing Date shall continue  to  be  treated  as  an  operating  lease  for  all  purposes  of  this  Agreement  after  the  Closing  Date  despite  any  changes  in  GAAP  occurring  after  the  Closing  Date,  and  any  such  lease  payments  shall not be considered Capitalized Lease Obligations hereunder.          “Cash Collateral Account” means a commercial Deposit Account designated as a “cash  collateral account” and maintained by one or more Credit Parties with the Administrative Agent,  without liability by the Administrative Agent or the Lenders to pay interest thereon, from which  account  the  Administrative  Agent,  on  behalf  of  the  Lenders,  shall  have  the  exclusive  right  to  withdraw funds until all of the Secured Obligations are paid in full.          “Cash Equivalent” means cash equivalent as determined in accordance with GAAP.          “Cash Security” means all cash, instruments, Deposit Accounts, Securities Accounts and  cash equivalents, in each case whether matured or unmatured, whether collected or in the process  of  collection,  upon  which  a  Credit  Party  presently  has  or  may  hereafter  have  any  claim  or  interest, wherever located, including but not limited to any of the foregoing that are presently or  may hereafter be existing or maintained with, issued by, drawn upon by, or in the possession of  the Administrative Agent or any Lender.          “CFC” means a Controlled Foreign Corporation, as such term is defined in Section 957  of the Code.           “Change in Control” means:                      (a)   the acquisition of, or, if earlier, the shareholder or director approval of the        acquisition of, ownership or voting control, directly or indirectly, beneficially (within the        meaning  of  Rules  13d-3  and  13d-5  of  the  Exchange  Act)  or  of  record,  on  or  after  the        Closing Date, by any Person or group (within the meaning of Sections 13d and 14d of the        Exchange  Act),  of  shares  representing  more  than  thirty-five  percent  (35%)  of  the        aggregate  ordinary  Voting  Power  represented  by  the  issued  and  outstanding  equity        interests  of  the Borrower;  provided  that,  for  clarification  purposes,  no  such  acquisition        will be deemed to have occurred if David A. Morken holds shares representing more than        thirty-five  percent  (35%)  of  the  aggregate  ordinary  Voting  Power  represented  by  the        issued and outstanding equity interests of the Borrower due to the conversion of shares of        the Borrower’s Class B common stock to the Borrower’s Class A common stock held by        shareholders other than David A. Morken from time to time;                      (b)   if, at any time during any period of twenty-four (24) consecutive months, a        majority of the members of the board of directors of the Borrower cease to be composed        of individuals (i) who were members of that board of directors on the first day of such        period,  (ii)  whose  election  or  nomination  to  that  board  of  directors  was  approved  by        individuals referred to in subpart (i) above that constituted, at the time of such election or        nomination,  at  least  a  majority  of  that  board  of  directors,  or  (iii)  whose  election  or        nomination to that board of directors was approved by individuals referred to in subparts                                          6  





 






         (i) and (ii) above that constituted, at the time of such election or nomination, at least a        majority of that board of directors;                      (c)   if the Borrower shall cease to directly own one hundred percent (100%) of        the  aggregate  ordinary  Voting  Power  represented  by  the  issued  and  outstanding  equity        interests of each Guarantor of Payment, except in the case of any disposition or sale of        any  Guarantor  of  Payment  to  the  extent  otherwise  expressly  permitted  pursuant  to  the        terms of this Agreement; or                      (d)   the occurrence of a change in control, or other term of similar import used        therein, as defined in any Material Indebtedness Agreement.          “Closing Date” means November 4, 2016.          “Code” means the Internal Revenue Code of 1986, as amended, together with the rules  and regulations promulgated thereunder.          “Collateral” means (a) all of the Borrower’s existing and future (i) personal property, (ii)  Accounts,  Investment  Property,  instruments,  contract  rights,  chattel  paper,  documents,  supporting  obligations,  letter-of-credit  rights,  Pledged  Securities,  Pledged  Notes  (if  any),  Commercial  Tort  Claims,  General  Intangibles,  Inventory  and  Equipment,  (iii)  funds  now  or  hereafter  on  deposit  in  the  Cash  Collateral  Account,  if  any,  and  (iv)  Cash  Security;  and  (b)  Proceeds  and  products  of  any  of  the  foregoing;  provided  that  Collateral  shall  not  include  Excluded Property.          “Commercial Tort Claim” means a commercial tort claim, as that term is defined in the  U.C.C.  (Schedule 7.5 hereto lists all Commercial Tort Claims of the Credit Parties in existence  as of the Closing Date.)          “Commitment” means the obligation hereunder of the Lenders, during the Commitment  Period, to make Loans and to participate in Swing Loans and the issuance of Letters of Credit  pursuant to the Revolving Credit Commitment and the Term Loan Commitment, up to the Total  Commitment Amount.          “Commitment Increase Period” means the period from the Closing Date to the date that is  six months prior to the last day of the Commitment Period.          “Commitment Period” means the period from the Closing Date to the earlier of (a) March  1, 2022, or (b) such earlier date on which the Commitment shall have been terminated pursuant  to Article IX hereof.          “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),  as amended from time to time, together with the rules and regulations promulgated thereunder.          “Companies” means the Borrower and all Subsidiaries.                                            7  





 






         “Company” means the Borrower or a Subsidiary.          “Compliance  Certificate”  means  a  Compliance  Certificate  in  the  form  of  the  attached  Exhibit E.          “Confidential  Information”  means  all  confidential  or  proprietary  information  about  the  Companies that has been furnished by any Company to the Administrative Agent or any Lender,  whether furnished before or after the Closing Date and regardless of the manner in which it is  furnished, but does not include any such information that (a) is or becomes generally available to  the public other than as a result of a disclosure by the Administrative Agent or such Lender not  permitted by this Agreement, (b) was available to the Administrative Agent or such Lender on a  nonconfidential basis prior to its disclosure to the Administrative Agent or such Lender, or (c)  becomes available to the Administrative Agent or such Lender on a nonconfidential basis from a  Person  other than  any  Company  that  is  not,  to  the  knowledge of  the  Administrative  Agent  or  such  Lender,  acting  in  violation  of  a  confidentiality  agreement  with  a  Company  or  is  not  otherwise  prohibited  from  disclosing  the  information  to  the  Administrative  Agent  or  such  Lender.          “Connection  Income  Taxes”  means  Other  Connection  Taxes  that  are  imposed  on  or  measured  by  net  income  (however  denominated)  or  that  are  franchise  Taxes  or  branch  profits  Taxes.          “Consideration” means,  in  connection  with  an  Acquisition,  the  aggregate  consideration  paid or to be paid, including borrowed funds, cash, deferred payments, the issuance of securities  or  notes,  the  assumption  or  incurring  of  liabilities  (direct  or  contingent),  the  payment  of  consulting fees or fees for a covenant not to compete and any other consideration paid or to be  paid for such Acquisition.          “Consignee’s Waiver” means a consignee’s waiver (or similar agreement), in form and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  delivered  by  a  Credit  Party  in  connection with this Agreement, as such waiver may from time to time be amended, restated or  otherwise modified.          “Consolidated”  means  the  resultant  consolidation  of  the  financial  statements  of  the  Borrower and its Subsidiaries in accordance with GAAP, including principles of consolidation  consistent with those applied in preparation of the consolidated financial statements referred to in  Section 6.14 hereof.          “Consolidated  Capital  Expenditures”  means,  for  any  period,  the  amount  of  capital  expenditures of the Borrower, as determined on a Consolidated basis; provided that Consolidated  Capital Expenditures shall not include:                (a)   the  portion  of  capital  expenditures  made  in  connection  with  the        replacement, substitution, restoration or repair of assets that are financed with insurance,        condemnation  awards,  other  settlements,  or  warranty  proceeds  paid,  in  each  case,  on        account of the loss of or damage to the assets being replaced, restored or repaired;                                          8  





 






                       (b)   to the extent fixed assets are purchased simultaneously with the trade-in of        existing fixed assets, the reduction in the purchase price or the credit granted by the seller        for the fixed assets being traded in at such time;                      (c)   capital  expenditures  made  with  the  proceeds  of  substantially        contemporaneous sales or issuances of equity interests of the Borrower, to the extent any        such sale or issuance does not result in a Change in Control;                      (d)   to the extent included in the foregoing definition, capital expenditures in        fixed  assets  that  are  being  purchased  as  part  of  an  Acquisition  permitted  pursuant  to        Section 5.13 hereof; and                      (e)   to the extent included in the foregoing definition, capital expenditures for        leasehold  improvements  made  (wholly  or  partly)  with  the  proceeds  of  landlord        allowances or contributions (to the extent of such contributions).          “Consolidated Funded Indebtedness” means, at any date, all Indebtedness (including, but  not limited to, short-term, long-term and Subordinated Indebtedness, if any) of the Borrower, as  determined on a Consolidated basis.          “Consolidated Net Worth” means, at any date, the stockholders’ equity of the Borrower,  determined as of such date on a Consolidated basis.          “Control  Agreement”  means  a  Deposit  Account  Control  Agreement  or  Securities  Account Control Agreement.          “Controlled Group” means a Company and each Person required to be aggregated with a  Company under Code Section 414(b), (c), (m) or (o).          “CPaaS  Revenue”  means,  for  any  period,  recurring  revenue  of  the  Borrower  for  such  period,  as  determined  on  a  Consolidated  basis,  consistently  categorized  as  it  has  been  in  the  Borrower’s  historical  financial  statements  prior  to  the  date  of  this  Agreement  as  “CPaaS  Revenue”, which will include all recurring license and service revenue derived from the sale of  and  use  of  Borrower’s  communications  platform,  including,  without  limitation,  voice  usage,  phone  number  services,  911-enabled  phone  number  services,  messaging  services  and  other  communications services.            “Credit  Event”  means  the  making  by  the  Lenders  of  a  Loan,  the  conversion  by  the  Lenders  of  a  Base  Rate  Loan  to  a  Eurodollar  Loan,  the  continuation  by  the  Lenders  of  a  Eurodollar Loan after the end of the applicable Interest Period, the making by the Swing Line  Lender of a Swing Loan, or the issuance (or amendment or renewal) by the Issuing Lender of a  Letter of Credit.                                            9  





 






         “Credit Exposure” means, at any time, with respect to a Specific Commitment, the sum  of (a) the aggregate principal amount of all Loans outstanding under such Specific Commitment,  and (b) the Letter of Credit Exposure, if any, applicable to such Specific Commitment.          “Credit  Party”  means  the  Borrower,  and  any  Subsidiary  or  other  Affiliate  that  is  a  Guarantor of Payment or has executed and delivered a Security Agreement.          “Default Rate” means (a) with respect to any Loan or other Obligation for which a rate is  specified, a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable  thereto, and (b) with respect to any other amount, if no rate is specified or available, a rate per  annum equal to two percent (2%) in excess of the Derived Base Rate from time to time in effect.          “Defaulting  Lender”  means  a  Lender,  as  reasonably  determined  by  the  Administrative  Agent,  that  (a)  has  failed  (which  failure  has  not  been  cured)  to  fund  any  Loan  or  any  participation  interest  in  Letters  of  Credit  or  Swing  Loans  required  to  be  made  hereunder  in  accordance  with  the  terms  hereof  (unless  such  Lender  shall  have  notified  the  Administrative  Agent and the Borrower in writing of its good faith determination that a condition under Section  4.1 hereof to its obligation to fund any Loan shall not have been satisfied); (b) has notified the  Borrower or the Administrative Agent in writing that it does not intend to comply with any of its  funding obligations under this Agreement or has made a public statement to the effect that it does  not intend to comply with its funding obligations under this Agreement (unless such writing or  public  statement  relates  to  such  Lender’s  obligation  to  fund  a  Loan  hereunder  and  states  that  such  position  is  based  on  such  Lender’s  determination  that  a  condition  precedent  to  funding  (which condition precedent, together with any applicable default, shall be specifically identified  in such writing or public statement) cannot be satisfied) or generally under other agreements in  which it commits to extend credit; (c) has failed, within three Business Days after receipt of a  written request from the Administrative Agent or the  Borrower to confirm that it will comply  with  the  terms  of  this  Agreement  relating  to  its  obligation  to  fund  prospective  Loans  or  participations  in  Letters  of Credit  or  Swing  Loans,  and  such  request  states  that  the requesting  party has reason to believe that the Lender receiving such request may fail to comply with such  obligation, and states such reason; or (d) has failed to pay to the Administrative Agent or any  other  Lender  when  due  an  amount  owed  by  such  Lender  to  the  Administrative  Agent  or  any  other Lender pursuant to the terms of this Agreement, unless such amount is subject to a good  faith  dispute  or  such  failure  has  been  cured.   Any  Defaulting  Lender  shall  cease  to  be  a  Defaulting Lender when the Administrative Agent determines, in its reasonable discretion, that  such Defaulting Lender is no longer a Defaulting Lender based upon the characteristics set forth  in this definition.          “Deposit Account” means a deposit account, as that term is defined in the U.C.C.          “Deposit Account Control Agreement” means each Deposit Account Control Agreement  (or  similar  agreement  with  respect  to  a  Deposit  Account)  among  a  Credit  Party,  the  Administrative Agent and a depository institution, dated on or after the Closing Date, to be in  form and substance reasonably satisfactory to the Administrative Agent, as the same may from  time to time be amended, restated or otherwise modified.                                            10  





 






         “Derived Base Rate” means a rate per annum equal to the sum of the Applicable Margin  for Base Rate Loans plus the Base Rate.          “Derived Eurodollar Rate” means a rate per annum equal to the sum of the Applicable  Margin for Eurodollar Loans plus the  Eurodollar Rate.          “Dodd-Frank Act” means the Dodd–Frank Wall Street Reform and Consumer Protection  Act  (Pub.L.  111-203,  H.R.  4173)  signed  into  law  on  July  21,  2010,  as  amended  from  time to  time.          “Dollar” or the $ sign means lawful currency of the United States.          “Domestic Subsidiary” means a Subsidiary that is not a Foreign Subsidiary.          “Dormant Subsidiary”  means a Company that (a) is not a Credit Party  or the direct or  indirect equity holder of a Credit Party, (b) has aggregate assets of less than Two Hundred Fifty  Thousand Dollars ($250,000), and (c) has no direct or indirect Subsidiaries with aggregate assets,  for such Company and all such Subsidiaries, of more than Two Hundred Fifty Thousand Dollars  ($250,000).  As of the Closing Date, IP Spectrum Solutions, LLC is a Dormant Subsidiary and is  not a Credit Party.          “EEA  Financial  Institution”  means  (a)  any  credit  institution  or  investment  firm  established  in  any  EEA  Member  Country  which  is  subject  to  the  supervision  of  an  EEA  Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of  an institution described in subpart (a) of this definition, or (c) any financial institution established  in an EEA Member Country that is a subsidiary of an institution described in subparts (a) or (b)  of this definition and is subject to consolidated supervision with its parent.          “EEA  Member  Country”  means  any  of  the  member  states  of  the  European  Union,  Iceland, Liechtenstein, and Norway.          “EEA  Resolution  Authority”  means  any  public  administrative  authority  or  any  person  entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee) having responsibility for the resolution of any EEA Financial Institution.          “Eligible Transferee” means a commercial bank, financial institution or other “accredited  investor” (as defined in SEC Regulation D) that is not the Borrower, a Subsidiary, an Affiliate or  a natural person.          “Environmental Laws” means all provisions of law (including the common law), statutes,  ordinances, codes, rules, guidelines, policies, procedures, orders-in-council, regulations, permits,  licenses,  judgments,  writs,  injunctions,  decrees,  orders,  authorizations,  certificates,  approvals,  registrations, awards and standards promulgated by a Governmental Authority or by any court,  agency, instrumentality, regulatory authority or commission of any of the foregoing concerning  environmental health or safety and protection of natural resources, or regulation of the discharge  of substances into, the environment.                                          11  





 






           “Environmental  Permits”  means  all  permits,  licenses,  authorizations,  certificates,  approvals  or  registrations  required  by  any  Governmental  Authority  under  any  Environmental  Laws.          “Equalization Event” means the earlier of (a) the occurrence of an Event of Default under  Section 8.11 hereof, or (b) the acceleration of the maturity of the Obligations after the occurrence  of an Event of Default.          “Equalization Maximum Amount” means that term as defined in Section 9.5(b)(i) hereof.          “Equalization Percentage” means that term as defined in Section 9.5(b)(ii) hereof.          “Equipment” means equipment, as that term is defined in the U.C.C.          “ERISA”  means  the  Employee  Retirement  Income  Security  Act  of  1974,  as  amended  from time to time, and the regulations promulgated pursuant thereto.          “ERISA Event” means any of the following situations, occurrences or events, but only if  it  has  a  Material  Adverse  Effect:  (a)  the  existence  of  a  condition  or  event  with  respect  to  an  ERISA  Plan  that  presents  a  significant  risk  of  the  imposition  of  an  excise  tax  or  any  other  material liability on a Company or of the imposition of a Lien on the assets of a Company; (b)  the  engagement  by  a  Company  in  a  non-exempt  “prohibited  transaction”  (as  defined  under  ERISA  Section  406  or  Code  Section  4975) or  a  breach of a  fiduciary  duty  under ERISA that  could result in liability to a Company; (c) the application by a Controlled Group member for a  waiver from the minimum funding requirements of Code Section 412 or ERISA Section 302 or a  Controlled  Group  member  is  required  to  provide  security  under  Code  Section  401(a)(29)  or  ERISA Section 307;); (d) the occurrence of a Reportable Event with respect to any Pension Plan  administered by a Company or a Controlled Group member as to which notice is required to be  provided to the PBGC; (e) the withdrawal by a Controlled Group member from a Multiemployer  Plan in a “complete withdrawal” or a “partial withdrawal” (as such terms are defined in ERISA  Sections 4203 and 4205, respectively); (f) the involvement of, or occurrence or existence of any  event  or  condition  that  makes  likely  the  involvement  of,  a  Multiemployer  Plan  in  any  reorganization under ERISA Section 4241; (g) the failure of an ERISA Plan administered by a  Company or a Controlled Group member (and any related trust) that is intended to be qualified  under  Code  Sections  401  and  501  to  be  so  qualified  or  the  failure  of  any  “cash  or  deferred  arrangement” under any such ERISA Plan to meet the requirements of Code Section 401(k); (h)  the  taking  by  the  PBGC  of  any  steps  to  terminate  a  Pension  Plan  or  appoint  a  trustee  to  administer a Pension Plan, or the taking by a Controlled Group member of any steps to terminate  a Pension Plan; (i) the failure by a Controlled Group member or an ERISA Plan to satisfy any  requirements  of  law  applicable  to  an  ERISA  Plan;  (j)  the  commencement,  existence  or  threatening of a claim, action, suit, audit or investigation with respect to an ERISA Plan, other  than a routine claim for benefits; or (k) any incurrence by or any expectation of the incurrence by  a Controlled Group member of any liability for post-retirement benefits under any Welfare Plan,  other than as required by ERISA Section 601, et. seq. or Code Section 4980B.                                            12  





 






         “ERISA Plan” means an “employee benefit plan” (within the meaning of ERISA Section  3(3))  that  a  Controlled  Group  member  at  any  time  sponsors,  maintains,  contributes  to,  has  liability with respect to or has an obligation to contribute to such plan.          “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor entity), as in effect from time to time.          “Eurocurrency Liabilities” shall have the meaning assigned to that term in Regulation D  of the Board of Governors of the Federal Reserve System, as in effect from time to time.          “Eurodollar”  means  a  Dollar  denominated  deposit  in  a  bank  or  branch  outside  of  the  United States.          “Eurodollar  Loan”  means  a  Revolving  Loan  described  in  Section  2.2(a)  hereof,  or  a  portion of the Term Loan described in Section 2.3 hereof, that shall be denominated in Dollars  and on which the Borrower shall pay interest at the Derived Eurodollar Rate.          “Eurodollar Rate” means, with respect  to a Eurodollar Loan, for any  Interest  Period, a  rate  per  annum  equal  to  the  quotient  obtained  (rounded  upwards,  if  necessary,  to  the  nearest  1/16th  of  1%)  by  dividing  (a)  the  rate  of  interest,  determined  by  the  Administrative  Agent  in  accordance with its usual procedures (which determination shall be conclusive absent manifest  error) as of approximately 11:00 A.M. (London time) two Business Days prior to the beginning  of  such  Interest  Period  pertaining  to  such  Eurodollar  Loan,  as  listed  as  the  London  interbank  offered rate, as published by Thomson Reuters or Bloomberg (or, if for any reason such rate is  unavailable from  Thomson Reuters or Bloomberg,  from  any other similar company  or service  that  provides  rate  quotations  comparable  to  those  currently  provided  by  Thomson  Reuters  or  Bloomberg)  for Dollar deposits  in  immediately  available  funds  with  a  maturity  comparable  to  such Interest Period; by (b) 1.00 minus the Reserve Percentage.  Notwithstanding the foregoing,  if at any time the Eurodollar Rate, as determined above, is less than zero, it shall be deemed to be  zero for purposes of this Agreement.          “Event of Default” means an event or condition that shall constitute an event of default as  defined in Article VIII hereof.          “Exchange Act” means the Securities Exchange Act of 1934, as amended.          “Excluded Accounts” means (a) accounts used exclusively for payroll, payroll taxes or  other employee benefit or wage payments, (b) any fiduciary or trust account held exclusively for  the  benefit  of  an  unaffiliated  third  party,  and  (c)  such  other  accounts  as  may  be  agreed  to  in  writing  by  the  Administrative  Agent  in  its  sole  discretion.   For  the  avoidance  of  doubt,  an  Excluded Account may be a Deposit Account or a Securities Account.          “Excluded Property” means (a) licenses and contracts which by the terms of such licenses  and  contracts  prohibit  liens  on,  or  the  assignment  of,  such  agreements  (to  the  extent  such  prohibition is enforceable at law and is in effect), including any License issued to a Credit Party  by  the  FCC  or  a  state  public  utility  commission  solely  at  such  times  and  to  the  extent  that  a                                          13  





 






   security  interest  in  such  License  is  not  permitted  under  applicable  law;  (b) any  trademark  applications  for  which  a  statement  of  use  has  not  been  filed  (but  only  until  such  statement  is  filed);  (c)  any  rights  or  interest  in  any  contract,  lease,  permit,  license,  or  license  agreement  covering personal property of any Credit Party if under the terms of such contract, lease, permit,  license, or license agreement, or applicable law or regulation with respect thereto, the grant of a  security interest or lien therein is prohibited as a matter of law or under such regulation or under  the terms of such contract, lease, permit, license, or license agreement and such prohibition or  restriction has not been waived or the consent of the other party to such contract, lease, permit,  license, or license agreement has not been obtained (provided that, (i) the foregoing exclusions  shall  in  no  way  be  construed  (A)  to  apply  to  the  extent  that  any  described  prohibition  or  restriction  is  unenforceable  or  ineffective  under  Section  9-406,  9-407,  9-408,  or  9-409  of  the  UCC  or  other  applicable  law  or  regulation,  or  (B)  to  apply  to  the  extent  that  any  consent  or  waiver has been obtained that would permit Administrative Agent’s security interest or lien to  attach  thereto  notwithstanding  the  prohibition  or  restriction  contained  in  such  contract,  lease,  permit, license, or license agreement or under applicable law or regulation, and (ii) the foregoing  exclusions  shall  in  no  way  be  construed  to  limit,  impair,  or  otherwise  affect  Administrative  Agent’s continuing security interests in and liens upon any rights or interests of any Credit Party  in or to (1) monies due or to become due under or in connection with any described contract,  lease, permit, license, license agreement, or equity interests (including any Accounts), or (2) any  proceeds from the collection, sale, license, lease, or other dispositions of any such contract, lease,  permit,  license,  license  agreement,  or  equity  interests);  (d)  any  United  States  intent-to-use  trademark applications to the extent that, and solely during the period in which, the grant of a  security interest therein would impair the validity or enforceability, or result in the abandonment,  voiding  or  cancellation,  of  such  intent-to-use  trademark  applications  under  applicable  federal  law, provided that upon submission and acceptance by the USPTO of an amendment to allege  use  pursuant  to  15  U.S.C.  Section  1060(a)  (or  any  successor  provision),  such  intent-to-use  trademark application shall be considered Collateral; (e) any goods and related software (other  than Inventory) of any Credit Party which is subject to a purchase money Lien or the rights of a  lessor under a capital lease permitted under this Agreement if the grant of a security interest or  Lien to Administrative Agent in such asset is prohibited by the terms of the agreement between  such  Credit  Party  and  the  holder  of  such  purchase  money  Lien  or  such  lessor  and  such  prohibition has not been or is not waived, or the consent of the holder of the purchase money  Lien or such lessor has not been or is not otherwise obtained; (f) the joint venture or minority  equity  interests  of  a  Person  (other  than  the  a  Subsidiary  of  the  Credit  Party)  if  the  grant  of  a  security  interest  or  lien  to  Administrative  Agent  in  such  equity  interests  is  prohibited  by  the  terms  of  such  Person’s  organizational  documents  or  the  terms  of  any  shareholder  or  similar  agreement between a Credit Party and the other owners of the equity interests of such Person and  such prohibition has not been or is not waived or the requisite consents to permit such security  interest  or  lien  has  not  been  or  is  not  otherwise  obtained;  (g)  motor  vehicles  and  other  assets  subject  to  a  certificate  of  title  statute  with  (i)  an  individual  value  of  One  Hundred  Thousand  Dollars  ($100,000)  or  less,  or  (ii)  an  aggregate  value  of  Five  Hundred  Thousand  Dollars  ($500,000)  or  less,  except  to  the  extent  perfection  of  a  security  interest  therein  may  be  accomplished  by  filing  of  financing  statements  in  appropriate  form  in  a  central  filing  office  located  in  the  jurisdiction  in  which  the  granting  Credit  Party  is  organized;  and  (h)  security  interests  in  any  foreign  trademarks,  patents  or  copyright  if,  in  the  reasonable  judgment  of  Administrative  Agent  and  the  Borrower,  the  burden,  cost  or  consequences  of  creating  or                                          14  





 






   perfecting  such  security  interests  in  such  assets  is  excessive  in  relation  to  the  benefits  to  be  obtained therefrom by the Administrative Agent and Lenders; provided that “Excluded Property”  shall not include any Proceeds, products, substitutions or replacements of any Excluded Property  (unless  such  Proceeds,  products,  substitutions  or  replacements  would  constitute  Excluded  Property).            “Excluded  Swap  Obligations”  means,  with  respect  to  any  Credit  Party,  any  Swap  Obligation if, and to the extent that, all or a portion of the guarantee of such Credit Party of, or  the  grant  by  such  Credit  Party  of  a  security  interest  to  secure,  such  Swap  Obligation  (or  any  guarantee  thereof)  is  or  becomes  illegal  under  the  Commodity  Exchange  Act  or  any  rule,  regulation or order of the Commodity Futures Trading Commission (or the application or official  interpretation of any thereof) by virtue of such  Credit Party’s  failure to  constitute an “eligible  contract participant” as defined in the Commodity Exchange Act (determined after giving effect  to any “keepwell, support or other agreement” for the benefit of such Credit Party and any and  all guarantees of such Credit Party’s Swap Obligations by other Credit Parties), at the time such  guarantee or grant of security interest of such Credit Party becomes, or would become, effective  with respect  to such Swap Obligation.   If a  Swap Obligation  arises under a master  agreement  governing  more  than  one  swap,  such  exclusion  shall  apply  only  to  the  portion  of  such  Swap  Obligation  that  is  attributable  to  swaps  for  which  such  guarantee  or  security  interest  is,  or  becomes, illegal.          “Excluded Taxes” means, in the case of Recipient, (a) Taxes imposed on or measured by  net income (however denominated), branch profits Taxes, and franchise Taxes imposed on it (in  lieu  of  net  income  taxes),  in  each  case  (i)  imposed  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 or  (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes  imposed on amounts payable to or for the account of such Lender with respect to an applicable  interest  in  a  Loan  or  Commitment  pursuant  to  a  law  in  effect  on  the  date  on  which  (i)  such  Lender acquires such interest in the Loan or Commitment, or (ii) such Lender changes its lending  office, except in each case to the extent that, pursuant to Section 3.2, amounts with respect to  such  Taxes  were  payable  either  to  such  Lender’s  assignor  immediately  before  such  Lender  acquired the applicable interest in a Loan or Commitment or became a party hereto, or to such  Lender  immediately  before  it  changed  its  lending  office,  (c)  Taxes  attributable  to  such  Recipient’s failure to comply with Section 3.2(c), (d), (e) and (f), or to deliver the documentation  described  in  Section  3.2(d),  and  (d)  any  withholding  Taxes  imposed  with  respect  to  such  Recipient pursuant to FATCA.          “FATCA” means Sections 1471 through 1474 of the Code, as  in effect  on the Closing  Date (or any amended or successor version that is substantively comparable and not materially  more onerous to comply with), and any  current  or future regulations or official interpretations  thereof  and  any  agreements  entered  into  pursuant  to  Section  1471(b)(1)  of  the  Code,  any  intergovernmental  agreement  entered  into  in  connection  with  the  implementation  of  such  sections of the Code, and any fiscal or regulatory legislation, rules, or practices adopted pursuant  to such intergovernmental agreement.                                            15  





 






         “FCC” means the Federal Communications Commission and any successor agency.          “Federal Funds Effective Rate” means, for any day, the rate per annum (rounded upward  to  the  nearest  one  one-hundredth  of  one  percent  (1/100  of  1%))  announced  by  the  Federal  Reserve Bank of New York (or any successor) on such day as being the weighted average of the  rates on overnight federal funds transactions arranged by federal funds brokers on the previous  trading day, as computed and announced by such Federal Reserve Bank (or any successor) in  substantially  the  same  manner  as  such  Federal  Reserve  Bank  computes  and  announces  the  weighted average it refers to as the “Federal Funds Effective Rate” as of the Closing Date.          “Financial  Officer”  means  any  of  the  following  officers:  chief  executive  officer,  president,  chief  financial  officer  or  treasurer.   Unless  otherwise  qualified,  all  references  to  a  Financial Officer in this Agreement shall refer to a Financial Officer of the Borrower.          “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S.  Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under  the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.          “Foreign  Subsidiary”  means  a  Subsidiary  that  is  organized  under  the  laws  of  any  jurisdiction other than the United States, any State thereof or the District of Columbia.          “GAAP” means generally accepted accounting principles in the United States as then in  effect,  which  shall  include  the  official  interpretations  thereof  by  the  Financial  Accounting  Standards Board, applied on a basis consistent with the past accounting practices and procedures  of the Borrower.          “General Intangibles” means (a) general intangibles, as that term is defined in the U.C.C.;  and (b) choses in action, causes of action, intellectual property, customer lists, corporate or other  business  records,  inventions,  designs,  patents,  patent  applications,  service  marks,  registrations,  trade  names,  trademarks,  copyrights,  licenses,  goodwill,  computer  software,  rights  to  indemnification and tax refunds.          “Governmental  Authority”  means  any  nation  or  government,  any  state,  province  or  territory, or any local or other political subdivision thereof, any governmental agency, including  the FCC and state public utility commissions, department, authority, instrumentality, regulatory  body, court, central bank or other governmental 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),  any securities exchange and any self-regulatory organization exercising such functions, and any  group or body charged with setting financial accounting or regulatory capital rules or standards  (including,  without  limitation,  the  Financial  Accounting  Standards  Board,  the  Bank  for  International Settlements or the Basel Committee on Banking Supervision or any successor or  similar authority to any of the foregoing).          “Guarantor” means a Person that shall have pledged its credit or property in any manner  for the payment or other performance of the indebtedness, contract or other obligation of another                                          16  





 






   and includes (without limitation) any guarantor (whether of payment or of collection), surety, co- maker,  endorser  or  Person  that  shall  have  agreed  conditionally  or  otherwise  to  make  any  purchase, loan or investment in order thereby to enable another to prevent or correct a default of  any kind.          “Guarantor  of  Payment”  means  each  of  the  Companies  designated  a  “Guarantor  of  Payment”  on  Schedule  2  hereto,  each  of  which  is  executing  and  delivering  a  Guaranty  of  Payment on the Closing Date, and any other Person that shall execute and deliver a Guaranty of  Payment (or Guaranty of Payment Joinder) to the Administrative Agent, or become a party by  joinder to the Guaranty  of Payment that was executed on the Closing  Date, subsequent to the  Closing Date.          “Guaranty of Payment” means each Guaranty of Payment executed and delivered on or  after the Closing Date in connection with this Agreement by one or more Guarantors of Payment,  as the same may from time to time be amended, restated or otherwise modified.          “Guaranty of Payment Joinder” means each Guaranty of Payment Joinder, executed and  delivered by a Guarantor of Payment for the purpose of adding such Guarantor of Payment as a  party to a previously executed Guaranty of Payment.          “Hedge  Agreement”  means  any  (a)  hedge  agreement,  interest  rate  swap,  cap,  collar  or  floor agreement, or other interest rate management device entered into by a Company with any  Person in connection with any Indebtedness of such Company, or (b) currency swap agreement,  forward currency purchase agreement or similar arrangement or agreement designed to protect  against fluctuations in currency exchange rates entered into by a Company.          “Indebtedness” means, for any Company, without duplication, (a) all obligations to repay  borrowed  money,  direct  or  indirect,  incurred,  assumed,  or  guaranteed,  (b)  all  obligations  in  respect of the deferred purchase price of property or services (other than trade accounts payable  and  accrued  expenses,  in  each  case  incurred  in  the  ordinary  course  of  business),  (c)  all  obligations  under  conditional  sales  or  other  title  retention  agreements,  (d)  all  obligations  (contingent or otherwise) under any letter of credit or banker’s acceptance, (e) all net obligations  under any currency swap agreement, interest rate swap, cap, collar or floor agreement or other  interest  rate  management  device  or  any  Hedge  Agreement,  (f)  all  synthetic  leases,  (g)  all  Capitalized  Lease  Obligations,  (h)  all  obligations  of  such  Company  with  respect  to  asset  securitization financing programs to the extent that there is recourse against such Company or  such Company is liable (contingent or otherwise) under any such program, (i) all obligations to  advance funds to, or to purchase assets, property or services from, any other Person in order to  maintain the financial condition of such Person, (j) all indebtedness of the types referred to in  subparts (a) through (i) above of any partnership or joint venture (other than a joint venture that  is itself a corporation or limited liability company) in which such Company is a general partner  or joint venturer, unless such indebtedness is expressly made non-recourse to such Company, (k)  any  other  transaction  (including  forward  sale  or  purchase  agreements)  having  the  commercial  effect of a borrowing of money entered into by such Company to finance its operations or capital  requirements, and (l) any guaranty of any obligation described in subparts (a) through (k) above.                                            17  





 






         “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of any Credit Party under any  Loan Document, and (b) to the extent not otherwise described in the foregoing subpart (a), Other  Taxes.          “Insolvent  Lender”  means  a  Lender,  as  reasonably  determined  by  the  Administrative  Agent, that (a) has become or is not Solvent or is the subsidiary of a Person that has become or is  not Solvent; (b) has become the subject of a proceeding under the Bankruptcy Code or under any  other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or has had a  receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance  of,  or  indicating  its  consent  to,  approval  of  or  acquiescence  in  any  such  proceeding  or  appointment, or is a subsidiary of a Person that has become the subject of a proceeding under the  Bankruptcy Code or under  any other applicable  bankruptcy, insolvency  or similar  law  now or  hereafter in effect, or has had a receiver, conservator, trustee or custodian appointed for it, or has  taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any  such proceeding or appointment; or (c) has become the subject of a Bail-In Action; provided that  a  Lender  shall  not  be  an  Insolvent  Lender solely  by  virtue  of  the  ownership  or  acquisition  or  control  of  an  equity  interest  in  such  Lender  or  a  parent  company  thereof  by  a  Governmental  Authority or an instrumentality thereof so long as such ownership interest does not result in or  provide such Lender with immunity from the jurisdiction of courts within the United States or  from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or  such  Governmental  Authority)  to  reject,  repudiate,  disavow  or  disaffirm  any  contracts  or  agreements made with such Lender.  Any Insolvent Lender shall cease to be an Insolvent Lender  when  the  Administrative  Agent  determines,  in  its  reasonable  discretion,  that  such  Insolvent  Lender is no longer an Insolvent Lender based upon the characteristics set forth in this definition.          “Intellectual  Property  Security  Agreement”  means  each  Intellectual  Property  Security  Agreement, executed and delivered on or after the Closing Date by a Credit Party, wherein such  Credit Party, as the case may be, has granted to the Administrative Agent, for the benefit of the  Lenders, a security interest in all intellectual property owned by such Credit Party, as the same  may from time to time be amended, restated or otherwise modified.          “Interest Adjustment Date” means the last day of each Interest Period.          “Interest Period” means, with respect to a Eurodollar Loan, the period commencing on  the date such Eurodollar Loan is made and ending on the last day of such period, as selected by  the Borrower pursuant to the provisions hereof, and, thereafter (unless such Eurodollar Loan is  converted  to  a  Base  Rate  Loan),  each  subsequent  period  commencing  on  the  last  day  of  the  immediately preceding Interest Period and ending on the last day of such period, as selected by  the  Borrower  pursuant  to  the  provisions  hereof.   The  duration  of  each  Interest  Period  for  a  Eurodollar Loan shall be one month, two months, three months or six months, in each case as the  Borrower  may  select  upon  notice,  as  set  forth  in  Section  2.6  hereof;  provided  that,  if  the  Borrower shall fail to so select the duration of any Interest Period at least three Business Days  prior to the Interest Adjustment Date applicable to such Eurodollar Loan, the Borrower shall be  deemed  to  have  converted  such  Eurodollar  Loan  to  a  Base  Rate  Loan  at  the  end  of  the  then                                          18  





 






   current Interest Period.  Notwithstanding the foregoing, no Interest Period shall extend beyond  the last day of the Commitment Period.          “Inventory” means inventory, as that term is defined in the U.C.C.          “Investment Property” means investment property, as that term is defined in the U.C.C.,  unless  the  Uniform  Commercial  Code  as  in  effect  in  another  jurisdiction  would  govern  the  perfection  and  priority  of  a  security  interest  in  investment  property,  and,  in  such  case,  “investment property” shall be defined in accordance with the law of that jurisdiction as in effect  from time to time.          “Issuing  Lender”  means,  as  to  any  Letter  of  Credit  transaction  hereunder,  the  Administrative Agent as issuer of the Letter of Credit, or, in the event that the Administrative  Agent  either  shall  be  unable  to  issue  or  the  Administrative  Agent  shall  agree  that  another  Revolving  Lender  may  issue,  a  Letter  of  Credit,  such  other  Revolving  Lender  as  shall  be  acceptable to the Administrative Agent and shall agree to issue the Letter of Credit in its own  name, but in each instance on behalf of the Revolving Lenders.          “KeyBank” means KeyBank National Association, and its successors and assigns.          “Landlord’s Waiver” means a landlord’s waiver or mortgagee’s waiver, each in form and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  delivered  by  a  Credit  Party  in  connection with this Agreement, as such waiver may from time to time be amended, restated or  otherwise modified.          “Lender” means that term as defined in the first paragraph of this Agreement and, as the  context requires, shall include the Issuing Lender and the Swing Line Lender.          “Lender  Credit  Exposure”  means,  for  any  Lender,  at  any  time,  the  aggregate  of  such  Lender’s  respective  pro  rata  shares  of  the  Revolving  Credit  Exposure  and  the  Term  Loan  Exposure.          “Letter of Credit” means a commercial documentary letter of credit or standby letter of  credit that shall be issued by the Issuing Lender for the account of the Borrower or a Guarantor  of Payment, including amendments thereto, if any, and shall have an expiration date no later than  the earlier of (a) three hundred sixty-four (364) days after its date of issuance (provided that such  Letter of Credit may provide for the renewal thereof for additional one year periods), or (b) thirty  (30) days prior to the last day of the Commitment Period.          “Letter of Credit Commitment” means the commitment of the Issuing Lender, on behalf  of the Revolving Lenders, to issue Letters of Credit in an aggregate face amount of up to Two  Million Five Hundred Thousand Dollars ($2,500,000).          “Letter of Credit Exposure” means, at any time, the sum  of (a) the aggregate undrawn  amount of all issued and outstanding Letters of Credit, and (b) the aggregate of the draws made                                          19  





 






   on Letters of Credit that have not been reimbursed by the Borrower or converted to a Revolving  Loan pursuant to Section 2.2(b)(iv) hereof.          “Letter of Credit Fee” means, with respect to any Letter of Credit, for any day, an amount  equal to (a) the face amount of such Letter of Credit, multiplied by (b) the Applicable Margin for  Revolving Loans that are Eurodollar Loans divided by three hundred sixty (360).          “License” means any license, authorization, approval, or permit granted to a Credit Party  by the FCC, any state public utility commission, or other telecommunications regulatory body.          “Lien”  means  any  mortgage,  deed  of  trust,  security  interest,  lien  (statutory  or  other),  charge,  assignment,  hypothecation,  encumbrance  on,  pledge  or  deposit  of,  or  conditional  sale,  lease  (other  than  Operating  Leases),  sale  with  a  right  of  redemption  or  other  title  retention  agreement and any capitalized lease with respect to any property (real or personal) or asset.          “Liquidity Amount” means, as of any date of determination, the sum of (a) the Revolving  Amount, minus (b) the Revolving Credit Exposure, plus (c) all unencumbered (other than a Lien  of the Administrative Agent), unrestricted cash on hand of Borrower plus any Cash Equivalents  of  Borrower,  in  each  case,  held  at  financial  institutions  (or  in  the  case  of  Cash  Equivalents,  securities intermediaries) located in the United States.                “Loan” means  a  Revolving  Loan,  a Swing  Loan,  the Term  Loan  or,  if applicable,  any  other loan made pursuant to an Additional Term Loan Facility.          “Loan  Documents”  means,  collectively,  this  Agreement,  each  Note,  each  Guaranty  of  Payment, each Guaranty of Payment Joinder, all documentation relating to each Letter of Credit,  each Security Document and the Administrative Agent Fee Letter, as any of the foregoing may  from  time  to  time  be  amended,  restated  or  otherwise  modified  or  replaced,  and  any  other  document delivered pursuant thereto.          “Mandatory Prepayment” means that term as defined in Section 2.12(c) hereof.          “Material  Adverse  Effect”  means  a  material  adverse  effect  on  (a)  the  business,  assets,  operations  or,  condition  (financial  or  otherwise)  of  the  Borrower,  (b)  the  business,  assets,  operations or condition (financial or otherwise) of the Companies taken as a whole, (c) the rights  and remedies of the Administrative Agent or the Lenders under any other Loan Document, (d)  the ability of any Credit Party to perform its obligations under any Loan Document to which it is  a party, or (e) the legality, validity, binding effect or enforceability against any Credit Party of  any Loan Document to which it is a party.          “Material Indebtedness Agreement” means any debt instrument, lease (capital, operating  or  otherwise),  guaranty,  contract,  commitment,  agreement  or  other  arrangement  evidencing  or  entered into in connection with any Indebtedness of any Company or the Companies equal to or  in excess of the amount of Three Million Dollars ($3,000,000).                                            20  





 






         “Material  Recovery  Determination  Notice”  means  that  term  as  defined  in  Section  2.12(c)(ii) hereof.          “Material Recovery Event” means (a) any casualty loss in respect of assets of a Company  covered  by  casualty  insurance,  and  (b)  any  compulsory  transfer  or  taking  under  threat  of  compulsory transfer of any asset of a Company by any Governmental Authority; provided that,  in the case of either subpart (a) or (b) hereof, the proceeds received by the Companies from such  loss, transfer or taking exceeds One Hundred Thousand Dollars ($100,000).          “Maximum  Amount”  means,  for  each  Lender,  the  amount  set  forth  opposite  such  Lender’s name under the column headed “Maximum Amount” as set forth on Schedule 1 hereto,  subject  to  (a)  decreases  pursuant  to  Section  2.10(a)  hereof,  (b)  increases  pursuant  to  Section  2.10(b) hereof, (c) decreases of the Term  Loan  by virtue of principal payments made, and (d)  assignments of interests pursuant to Section 11.10 hereof; provided that the Maximum Amount  for the Swing  Line  Lender shall exclude the Swing  Line Commitment  (other than its  pro rata  share),  and  the  Maximum  Amount  of  the  Issuing  Lender  shall  exclude  the  Letter  of  Credit  Commitment (other than its pro rata share thereof).          “Maximum Rate” means that term as defined in Section 2.4(e) hereof.          “Moody’s” means Moody’s Investors Service, Inc., and any successor to such company.          “Multiemployer  Plan”  means  a  Pension  Plan  that  is  subject  to  the  requirements  of  Subtitle E of Title IV of ERISA.          “Non-Consenting Lender” means that term as defined in Section 11.3(c) hereof.          “Non-Exempt  Asset  Sale”  means  the  sale  or  other  disposition  of  any  assets  by  a  Company to any Person other than:                 (a)  sales or disposition in the ordinary course of business, including, without        limitation, dispositions of obsolete and worn out equipment no longer used or useful in        the business; and                            (b)  sales or disposition that are not in the ordinary course of business, to the        extent that (i) the proceeds of such sale or other disposition are either (1) less than One        Million Dollars ($1,000,000) during any fiscal year of the Borrower, or (2) both (y) less        than Five Million Dollars ($5,000,000) during any fiscal year of the Borrower and Seven        Million  Five  Hundred  Thousand  Dollars  ($7,500,000)  during  the  Commitment  Period,        and  (z)  committed  to  be  reinvested  in  fixed  assets  or  other  similar  assets  within  one        hundred  eighty  (180)  days  of  such  sale  or  other  disposition,  and  actually  reinvested        within three hundred sixty-five (365) days of such sale or other disposition.          “Note”  means  a  Revolving  Credit  Note,  the  Swing  Line  Note  or  a  Term  Note,  or  any  other promissory note delivered pursuant to this Agreement.                                            21  





 






         “Notice of Loan” means a Notice of Loan in the form of the attached Exhibit D.          “Obligations” means, collectively, (a) all Indebtedness and other obligations now owing  or hereafter incurred by the Borrower to the Administrative Agent, the Swing Line Lender, the  Issuing Lender, or any Lender pursuant to this Agreement and the other Loan Documents, and  includes the principal of and interest  on all  Loans, and all  obligations of the Borrower or  any  other  Credit  Party  pursuant  to  Letters  of  Credit;  (b)  each  extension,  renewal,  consolidation  or  refinancing of any of the foregoing, in whole or in part; (c) the commitment and other fees, and  any prepayment fees, payable pursuant to this Agreement or any other Loan Document; (d) all  fees and charges in connection with Letters of Credit; (e) every other liability, now or hereafter  owing to the Administrative Agent or any Lender by any Company pursuant to this Agreement  or any other Loan Document; and (f) all Related Expenses.          “Original Credit Agreement” means that term as defined in the first WHEREAS clause of  this Agreement.          “Operating Leases” means all real or personal property leases under which any Company  is bound or obligated as a lessee or sublessee and which, under GAAP, are not required to be  capitalized  on  a  balance  sheet  of  such  Company;  provided  that  Operating  Leases  shall  not  include any such lease under which any Company is also bound as the lessor or sublessor.          “Organizational  Documents”  means,  with  respect  to  any  Person  (other  than  an  individual),  such  Person’s  Articles  (Certificate)  of  Incorporation,  operating  agreement  or  equivalent formation documents, and Regulations (Bylaws), or equivalent governing documents,  and any amendments to any of the foregoing.          “Other  Connection  Taxes”  means,  with  respect  to  any  Recipient,  Taxes  imposed  as  a  result of a present or former connection between the Administrative Agent or such Recipient and  the jurisdiction imposing such Taxes (other than connections arising from such Recipient having  executed,  delivered,  become  a  party  to,  performed  its  obligations  under,  received  payments  under, received or perfected a security interest under, engaged in any other transaction pursuant  to, or enforced, any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit,  or any Loan Document).          “Other  Taxes”  means  any  and  all  present  or  future  stamp  or  documentary,  intangible,  recording, filing or similar Taxes 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, except any such Taxes that are Other Connection  Taxes imposed with respect to an assignment.          “Overall Commitment Percentage” means, for any Lender, the percentage determined by  dividing (a) the sum, based upon such Lender’s Applicable Commitment Percentages, of (i) the  principal outstanding on the Term Loan, (ii) the aggregate principal amount of Revolving Loans  outstanding, (iii) the Swing Line Exposure, and (iv) the Letter of Credit Exposure; by (b) the sum  of  (A)  the  aggregate  principal  amount  of  all  Loans  outstanding,  plus  (B)  the  Letter  of  Credit  Exposure.                                          22  





 






           “Participant” means that term as defined in Section 11.11 hereof.          “Participant Register” means that term as described in Section 11.11(e) hereof.           “Patriot  Act”  means  the  Uniting  and  Strengthening  America  by  Providing  Appropriate  Tools Required to Intercept and Obstruct Terrorism Act of 2001, USA Patriot Act, Title III of  Pub. L. 107-56, signed into law October 26, 2001, as amended from time to time.          “PBGC” means the Pension Benefit Guaranty Corporation, and its successor.          “Pension  Plan”  means  an  ERISA  Plan  that  is  a “pension  plan” (within  the meaning  of  ERISA Section 3(2)).          “Permitted Investments” means:                (a)   direct obligations of the United States or any agency thereof or obligations        guaranteed by the United States or any agency thereof, in each case with maturities not        exceeding one year;                      (b)   time deposit accounts, certificates of deposit and money market deposits        maturing within one hundred eighty (180) days of the date of acquisition thereof issued        by  a  Lender  that  is  a  bank  or  trust  company,  or  by  any  bank  or  trust  company  that  is        organized under the laws of the United States, or any state thereof having capital, surplus        and  undivided  profits  in  excess  of  Five  Hundred  Million  Dollars  ($500,000,000)  and        whose long-term debt, or whose parent holding company’s long-term debt, is rated A (or        such similar equivalent rating or higher) by at least one nationally recognized statistical        rating organization (as defined in Rule 436 under the Securities Act);                      (c)   repurchase obligations  with a term of not more than one hundred eighty        (180) days for underlying securities of the types described in subpart (a) above entered        into with a Lender that is a bank, or with any bank meeting the qualifications described in        subpart (b) above;                      (d)   commercial  paper,  maturing  not  more  than  one  year  after  the  date  of        acquisition, issued by a corporation (other than an Affiliate of the Company) organized        and in existence under the laws of the United States or any foreign country recognized by        the United States with a rating at the time as of which any investment therein is made of        P-1 (or higher) according to Moody’s, or A-1 (or higher) according to Standard & Poor’s;                      (e)   securities with maturities of one year or less from the date of acquisition        issued or fully guaranteed by any state, commonwealth or territory of the United States,        or  by  any  political  subdivision  or  taxing  authority  thereof,  and  rated  at  least  A  by        Standard & Poor’s or A-2 by Moody’s;                                                  23  





 






               (f)   shares  of  mutual  funds  whose  investment  guidelines  restrict  ninety-five        percent (95%) of such funds’ investments to those satisfying the provisions of subparts        (a) through (e) above;                      (g)   money market funds that (i) comply with the criteria set forth in Rule 2a-7        under the  Investment  Company  Act  of  1940,  (ii) are  rated  AAA  by  Standard &  Poor’s        and  Aaa  by  Moody’s  and  (iii) have  portfolio  assets  of  at  least  Five  Hundred  Million        Dollars ($500,000,000); and                      (h)   the investments by a Company set forth on Schedule 5.11 hereto.          “Person”  means  any  individual,  sole  proprietorship,  partnership,  joint  venture,  unincorporated organization, corporation, limited liability company, unlimited liability company,  institution, trust, estate, Governmental Authority or any other entity.          “Pledge  Agreement”  means  each  of  the  Pledge  Agreements,  relating  to  the  Pledged  Securities, executed and delivered by a Credit Party, as applicable, in favor of the Administrative  Agent, for the benefit of the Lenders, dated on or after the Closing Date, as any of the foregoing  may from time to time be amended, restated or otherwise modified.          “Pledged Notes” means the promissory notes payable to a Credit Party, as described on  Schedule 7.4 hereto, and any additional or future promissory notes that may hereafter from time  to time be payable to a Credit Party.          “Pledged Securities” means all of the shares of capital stock or other equity interests of a  direct Subsidiary of a Credit Party, whether now owned or hereafter acquired or created, and all  proceeds thereof; provided that Pledged Securities shall exclude shares of voting capital stock or  other  voting  equity  interests  in  any  Foreign  Subsidiary  that  is  a  CFC  in  excess  of  sixty-five  percent (65%) of the total outstanding shares of each class of voting capital stock or other voting  equity  interest  of  such  Foreign  Subsidiary,  whether  held  directly  or  indirectly  through  a  disregarded entity.  (Schedule 3 hereto lists, as of the Closing Date, all of the Pledged Securities.)           “Prime Rate” means the interest rate established from time to time by the Administrative  Agent  as  the  Administrative  Agent’s  prime  rate,  whether  or  not  such  rate  shall  be  publicly  announced;  the  Prime  Rate may  not  be  the lowest  interest  rate  charged  by  the  Administrative  Agent  for  commercial  or  other  extensions  of  credit.  Each  change  in  the  Prime  Rate  shall  be  effective immediately from and after such change.          “Proceeds”  means  (a)  proceeds,  as  that  term  is  defined  in  the  U.C.C.,  and  any  other  proceeds, and (b) whatever is received upon the sale, exchange, collection or other disposition of  Collateral  or  proceeds,  whether  cash  or  non-cash.   Cash  proceeds  include,  without  limitation,  moneys,  checks  and  Deposit  Accounts.   Proceeds  include,  without  limitation,  any  Account  arising  when  the  right  to  payment  is  earned  under  a  contract  right,  any  insurance  payable  by  reason  of  loss  or  damage  to  the  Collateral,  and  any  return  or  unearned  premium  upon  any  cancellation  of  insurance.   Except  as  expressly  authorized  in  this  Agreement,  the  right  of  the  Administrative Agent and the Lenders to Proceeds specifically set forth herein, or indicated in                                          24  





 






   any financing statement, shall never constitute an express or implied authorization on the part of  the  Administrative  Agent  or  any  Lender  to  a  Company’s  sale,  exchange,  collection  or  other  disposition of any or all of the collateral securing the Secured Obligations.          “Processor’s  Waiver”  means  a  processor’s  waiver  (or  similar  agreement),  in  form  and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  delivered  by  a  Credit  Party  in  connection with this Agreement, as such waiver may from time to time be amended, restated or  otherwise modified.          “Recipient” means, as applicable (a) any Lender, or (b) the Issuing Lender.          “Register” means that term as described in Section 11.10(i) hereof.          “Regularly Scheduled Payment Date” means the last Business Day of each March, June,  September and December of each year.            “Related  Expenses”  means  any  and  all  reasonable  out-of-pocket  costs,  liabilities  and  expenses  (including,  without  limitation,  losses,  damages,  penalties,  claims,  actions,  reasonable  and actual attorneys’ fees, legal expenses, judgments, suits and disbursements) (a) incurred by  the Administrative Agent, or imposed upon or asserted against the Administrative Agent or any  Lender,  in  any  attempt  by  the  Administrative  Agent  and  the  Lenders  to  (i)  enforce  this  Agreement  or  any  other  Loan  Document  or  obtain,  preserve,  perfect  or  enforce  any  Loan  Document  or  any  security  interest  evidenced  by  any  Loan  Document;  (ii)  obtain  payment,  performance or observance of any and all of the Secured Obligations; or (iii) maintain, insure,  audit,  collect,  preserve,  repossess  or  dispose  of  any  of  the  collateral  securing  the  Secured  Obligations or any part thereof, including, without limitation, costs and expenses for appraisals,  assessments  and  audits  of  any  Company  or  any  such  collateral;  or  (b)  incidental  or  related  to  subpart  (a)  above,  including,  without  limitation,  interest  thereupon  from  the  date  incurred,  imposed or asserted until paid at the Default Rate.          “Related  Writing”  means  each  Loan  Document  and  any  other  assignment,  mortgage,  security  agreement,  guaranty  agreement,  subordination  agreement,  financial  statement,  audit  report or other writing furnished by any Credit Party, or any of its officers, to the Administrative  Agent or the Lenders pursuant to or otherwise in connection with this Agreement; provided that  no Bank Product Agreement or Hedge Agreement shall constitute a Related Writing hereunder.          “Reportable  Event”  means  a  “reportable  event”  as  that  term  is  defined  in  Title  IV  of  ERISA, except actions of general applicability by the Secretary of Labor under Section 110 of  such Act.          “Required  Lenders”  means  the  holders,  based  upon  each  Lender’s  Applicable  Commitment Percentages, of more than fifty percent (50%) of an amount (the “Total Amount”)  equal to the sum of:                (a)  (i)  during  the  Commitment  Period,  the  Revolving  Amount,  or  (ii)  after  the        Commitment Period, the Revolving Credit Exposure; and                                          25  





 






                        (b) the principal outstanding on the Term Loan;    provided that (A) the portion of the Total Amount held or deemed to be held by any Defaulting  Lender  or  Insolvent  Lender  shall  be  excluded  for  purposes  of  making  a  determination  of  Required Lenders, and (B) if there shall be two or more Lenders (that are not Defaulting Lenders  or Insolvent Lenders), Required Lenders shall constitute at least two unaffiliated Lenders.          “Requirement  of  Law”  means,  as  to  any  Person,  any  law,  treaty,  rule  or  regulation  or  determination  or  policy  statement  or  interpretation  of  an  arbitrator  or  a  court  or  other  Governmental Authority, in each case applicable to or binding upon such Person or any of its  property.          “Reserve Percentage” means, for any day, that percentage (expressed as a decimal) that is  in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or  any successor) for determining the maximum reserve requirement (including, without limitation,  all  basic,  supplemental,  marginal  and  other  reserves  and  taking  into  account  any  transitional  adjustments  or  other  scheduled  changes  in  reserve  requirements)  for  a  member  bank  of  the  Federal  Reserve  System  in  Cleveland,  Ohio,  in  respect  of  Eurocurrency  Liabilities.   The  Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in  the Reserve Percentage.          “Restatement Date” means March 1, 2019.          “Restricted Payment” means, with respect to any Company, (a) any Capital Distribution  paid  in  cash,  (b)  any  amount  paid  in  cash  by  such  Company  in  repayment,  redemption,  retirement  or  repurchase,  directly  or  indirectly,  of  any  Subordinated  Indebtedness,  or  (c)  any  amount paid in cash by such Company in respect of any management, consulting or other similar  arrangement with any equity holder (other than a Company) of a Company or an Affiliate. For  the  avoidance  of  doubt,  a  payment  by  a  Company  to  another  Credit  Party  is  not  a  Restricted  Payment.          “Revolving Amount” means Twenty-Five Million Dollars ($25,000,000), as such amount  may  be  increased  pursuant  to  Section  2.10(b)  hereof  or  reduced  pursuant  to  Section  2.10(a)  hereof.          “Revolving  Credit  Commitment”  means  the  obligation  hereunder,  during  the  Commitment  Period,  of  (a)  the  Revolving  Lenders  (and  each  Revolving  Lender)  to  make  Revolving Loans, (b) the Issuing Lender to issue, and each Revolving Lender to participate in,  Letters of Credit pursuant to the Letter of Credit Commitment, and (c) the Swing Line Lender to  make,  and  each  Revolving  Lender  to  participate  in,  Swing  Loans  pursuant  to  the  Swing  Line  Commitment;  up  to  an  aggregate  principal  amount  outstanding  at  any  time  equal  to  the  Revolving Amount.                                            26  





 






         “Revolving Credit Exposure” means, at any time, the sum of (a) the aggregate principal  amount of all Revolving Loans outstanding, (b) the Swing Line Exposure, and (c) the Letter of  Credit Exposure.          “Revolving  Credit  Note”  means  a  Revolving  Credit  Note,  in  the  form  of  the  attached  Exhibit A, executed and delivered pursuant to Section 2.5(a) hereof.          “Revolving  Lender”  means  a  Lender  with  a  percentage  of  the  Revolving  Credit  Commitment as set forth on Schedule 1 hereto, or that acquires a percentage of the Revolving  Credit Commitment pursuant to Section 2.10(b) or 11.10 hereof.          “Revolving  Loan”  means  a  loan  made  to  the  Borrower  by  the  Revolving  Lenders  in  accordance with Section 2.2(a) hereof.          “Sanctions” means any sanctions administered or enforced from time to time by (a) the  U.S. government, including those administered by the Office of Foreign Assets Control or the  U.S. Department of State or (b) the United Nations Security Council, the European Union or Her  Majesty’s Treasury of the United Kingdom.          “SEC”  means  the  United  States  Securities  and  Exchange  Commission,  or  any  governmental body or agency succeeding to any of its principal functions.          “Secured  Obligations”  means,  collectively,  (a)  the  Obligations,  (b)  all  obligations  and  liabilities of the Companies owing to a Lender (or an entity that is an affiliate of a then existing  Lender) under Hedge Agreements, and (c) the Bank Product Obligations owing to a Lender (or  an entity that is an affiliate of a then existing Lender) under Bank Product Agreements; provided  that Secured Obligations of a Credit Party shall not include Excluded Swap Obligations owing  from such Credit Party.          “Securities Account” means a securities account, as that term is defined in the U.C.C.            “Securities  Account  Control  Agreement”  means  each  Securities  Account  Control  Agreement (or similar agreement with respect to a Securities Account) among a Credit Party, the  Administrative Agent and a Securities Intermediary, dated on or after the Closing Date, to be in  form and substance reasonably satisfactory to the Administrative Agent, as the same may from  time to time be amended, restated or otherwise modified.          “Securities  Intermediary” means  a  clearing  corporation  or  a  Person,  including,  without  limitation,  a  bank  or  broker,  that  in  the  ordinary  course  of  its  business  maintains  Securities  Accounts for others and is acting in that capacity.          “Security Agreement” means each Security Agreement, executed and delivered by one or  more Guarantors of Payment in favor of the Administrative Agent, for the benefit of the Lenders,  dated as of the Closing Date, and any other Security Agreement executed on or after the Closing  Date, as the same may from time to time be amended, restated or otherwise modified.                                            27  





 






         “Security  Agreement  Joinder”  means  each  Security  Agreement  Joinder,  executed  and  delivered by a Guarantor of Payment for the purpose of adding such Guarantor of Payment as a  party to a previously executed Security Agreement.          “Security Document” means each Security Agreement, each Security Agreement Joinder,  each  Pledge  Agreement,  each  Intellectual  Property  Security  Agreement,  each  Processor’s  Waiver, each Consignee’s Waiver, each Landlord’s Waiver, each Bailee’s Waiver, each Control  Agreement, each U.C.C. Financing Statement or similar filing as to a jurisdiction located outside  of the United States filed in connection herewith or perfecting any interest created in any of the  foregoing  documents,  and  any  other  document  pursuant  to  which  any  Lien  is  granted  by  a  Company  or  any  other  Person  to  the  Administrative  Agent,  for  the  benefit  of  the  Lenders,  as  security for the Secured Obligations, or any part thereof, and each other agreement executed or  provided  to  the  Administrative  Agent  in  connection  with  any  of  the  foregoing,  as  any  of  the  foregoing may from time to time be amended, restated or otherwise modified or replaced.          “Solvent”  means,  with  respect  to  any  Person,  that  (a)  the  fair  value  of  such  Person’s  assets is in excess of the total amount of such Person’s debts, as determined in accordance with  the Bankruptcy Code, (b) the present fair saleable value of such Person’s assets is in excess of  the amount that will be required to pay such Person’s debts as such debts  become absolute and  matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities  (including  disputed,  contingent  and  unliquidated  liabilities)  as  such  liabilities  mature  in  the  normal course of business, (d) such Person does not intend to, and does not believe that it will,  incur debts or liabilities beyond its ability to pay as such debts and liabilities mature, and (e) such  Person is not engaged in business or a transaction, and is not about to engage in business or a  transaction, for which its property would constitute an unreasonably small amount of capital.  As  used  in  this  definition,  the  term  “debts”  includes  any  legal  liability,  whether  matured  or  unmatured, liquidated or unliquidated, absolute, fixed or contingent, as determined in accordance  with the Bankruptcy Code.          “Specific  Commitment”  means  the  Revolving  Credit  Commitment  or  the  Term  Loan  Commitment.          “Standard & Poor’s” means Standard & Poor’s Financial Services LLC, a subsidiary of  The McGraw-Hill Companies, Inc., and any successor to such company.          “Subordinated Indebtedness” means Indebtedness that shall have been subordinated (by  written  terms  or  written  agreement  being,  in  either  case,  in  form  and  substance  reasonably  satisfactory to the Administrative Agent) in favor of the prior payment in full of the Obligations.          “Subsidiary” means, with respect to any Person, (a) a corporation more than fifty percent  (50%) of the Voting Power of which is owned, directly or indirectly, by such Person or by one or  more other subsidiaries of such Person or by such Person and one or more subsidiaries of such  Person, (b) a partnership, limited liability company or unlimited liability company of which such  Person,  one  or  more  other  subsidiaries  of  such  Person  or  such  Person  and  one  or  more  subsidiaries of such Person, directly or indirectly, is a general partner or managing member, as  the case may be, or otherwise has an ownership interest greater than fifty percent (50%) of all of                                          28  





 






   the  ownership  interests  in  such  partnership,  limited  liability  company  or  unlimited  liability  company,  or  (c)  any  other  Person  (other  than  a  corporation,  partnership,  limited  liability  company or unlimited liability company) in which such Person, one or more other subsidiaries of  such Person or such Person and one or more subsidiaries of such Person, directly or indirectly,  has at least a majority interest in the Voting Power or the power to elect or direct the election of a  majority  of  directors  or  other  governing  body  of  such  Person.   Unless  the  context  otherwise  requires, Subsidiary herein shall be a reference to a Subsidiary of the Borrower.          “Supporting  Letter  of  Credit”  means  a  standby  letter  of  credit,  in  form  and  substance  satisfactory to the Administrative Agent and the Issuing Lender, issued by an issuer satisfactory  to the Administrative Agent and the Issuing Lender.          “Swap  Obligations”  means,  with  respect  to  any  Company,  any  obligation  to  pay  or  perform  under  any  agreement,  contract  or  transaction  that  constitutes  a  “swap”  within  the  meaning of section 1a(47) of the Commodity Exchange Act.          “Swing  Line Commitment” means the commitment of the Swing  Line  Lender to make  Swing Loans to the Borrower, on a discretionary basis, up to the aggregate amount at any time  outstanding of One Million Dollars ($1,000,000).           “Swing Line Exposure” means, at any time, the aggregate principal amount of all Swing  Loans outstanding.          “Swing Line Lender” means KeyBank, as holder of the Swing Line Commitment.          “Swing  Line Note” means  the Swing  Line  Note, in the form of the attached Exhibit B  executed and delivered pursuant to Section 2.5(b) hereof.          “Swing Loan” means a loan that shall be denominated in Dollars made to the Borrower  by the Swing Line Lender under the Swing Line Commitment, in accordance with Section 2.2(c)  hereof.          “Swing Loan Maturity Date” means, with respect to any Swing Loan, the earliest of (a)  thirty (30) days after the date such Swing Loan is made, (b) demand by the Swing Line Lender,  or (c) the last day of the Commitment Period.          “Taxes” means any and all present or future taxes of any kind, including, but not limited  to, levies, imposts, duties, surtaxes, charges, fees, deductions or withholdings now or hereafter  imposed, levied, collected, withheld or assessed by any Governmental Authority (together with  any interest, penalties, fines, additions to taxes or similar liabilities with respect thereto).          “Term  Lender”  means a  Lender with a percentage of the Term  Loan  Commitment (or,  after  the  Term  Loan  Commitment  has  terminated,  the Term  Loan)  as  set  forth  on  Schedule 1  hereto, or that acquires a percentage of the Term Loan Commitment pursuant to Section 11.10  hereof.                                            29  





 






         “Term Loan” means the loan made to Borrower by the Term Lenders in accordance with  Section 2.3 hereof.          “Term Loan Commitment” means the obligation hereunder of the Term Lenders to make  the Term Loan, with each Term Lender’s obligation to participate therein being in the amount set  forth  opposite  such  Term  Lender’s  name  under  the  column  headed  “Term  Loan  Commitment  Amount”  as  set  forth  on  Schedule  1  hereto,  subject  to  assignments  of  interests  pursuant  to  Section 11.10 hereof.  As of the Restatement Date, the Term Loan Commitment is Zero Dollars  ($0.00).          “Term Loan Exposure” means, at any time, the outstanding principal amount of the Term  Loan.           “Term Loan Maturity Date” is not applicable as of the Restatement Date.          “Term  Note”  means  a  Term  Note,  in  the  form  of the attached  Exhibit  C  executed  and  delivered pursuant to Section 2.5(c) hereof.          “Total  Commitment  Amount”  means  the  principal  amount  of  Twenty-Five  Million  Dollars ($25,000,000), as such amount may be increased pursuant to Section 2.10(b) hereof, or  decreased pursuant to Section 2.10(a) hereof.          “U.C.C.”  means  the  Uniform  Commercial  Code,  as  in  effect  from  time  to  time  in  the  State of New York.          “U.C.C.  Financing  Statement”  means  a  financing  statement  filed  or  to  be  filed  in  accordance with the Uniform Commercial Code, as in effect from time to time, in the relevant  state or states.          “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)  of the Code.          “United States” means the United States of America.          “USPTO” means the United States Patent and Trademark Office in Alexandria, Virginia.          “Voting  Power”  means,  with  respect  to  any  Person,  the  exclusive  ability  to  control,  through the ownership of shares of capital stock, partnership interests, membership interests or  otherwise, the election of members of the board of directors or other similar governing body of  such Person.  The holding of a designated percentage of Voting Power of a Person means the  ownership of shares of capital stock, partnership interests, membership interests or other interests  of such Person sufficient to control exclusively the election of that percentage of the members of  the board of directors or similar governing body of such Person.          “Welfare  Plan”  means  an  ERISA  Plan  that  is  a  “welfare  plan”  within  the  meaning  of  ERISA Section 3(l).                                          30  





 






           “Write-Down  and  Conversion  Powers”  means,  with  respect  to  any  EEA  Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time  to  time  under  the  Bail-In  Legislation  for  the  applicable  EEA  Member  Country,  which  write-down and conversion powers are described in the EU Bail-In Legislation Schedule.          Section 1.2.  Accounting Terms.            (a)   Any  accounting  term  not  specifically  defined  in  this  Article  I  shall  have  the  meaning ascribed thereto by GAAP.          (b)   If  any  change  in  the  rules,  regulations,  pronouncements,  opinions  or  other  requirements of the Financial Accounting Standards Board (or any successor thereto or agency  with similar function) is made with respect to GAAP, or if the Borrower adopts the International  Financial Reporting Standards, and such change or adoption results in a change in the calculation  of  any  component  (or  components  in  the  aggregate)  of  the  financial  covenants  set  forth  in  Section 5.7 hereof or the related financial definitions, at the option of the Administrative Agent,  the Required Lenders or the Borrower, the parties hereto will enter into good faith negotiations to  amend  such  financial  covenants  and  financial  definitions  in  such  manner  as  the  parties  shall  agree,  each  acting  reasonably,  in  order  to  reflect  fairly  such  change  or  adoption  so  that  the  criteria for evaluating the financial condition of the Borrower shall be the same in commercial  effect after, as well as before, such change or adoption is made (in which case the method and  calculating such financial covenants and definitions hereunder shall be determined in the manner  so agreed); provided that, until so amended, such calculations shall continue to be computed in  accordance  with  GAAP  as  in  effect  prior  to  such  change  or  adoption.   Notwithstanding  the  foregoing, any lease which is required to be characterized as an operating lease under GAAP as  in effect on the Closing Date shall continue to be treated as an operating lease for all purposes of  this Agreement after the Closing Date despite any changes in GAAP occurring after the Closing  Date,  and  any  such  lease  payments  shall  not  be  considered  Capitalized  Lease  Obligations  hereunder.          Section  1.3.   Terms  Generally.   The  foregoing  definitions  shall  be  applicable  to  the  singular  and  plural  forms  of  the  foregoing  defined  terms.   Unless  otherwise  defined  in  this  Article I, terms that are defined in the U.C.C. are used herein as so defined.                                                              ARTICLE II.  AMOUNT AND TERMS OF CREDIT                                                 Section 2.1.  Amount and Nature of Credit.          (a)   Subject to the terms and conditions of this Agreement, the Lenders, on and after  the  Closing  Date  and  during  the  remainder  of  the  Commitment  Period  and  to  the  extent  hereinafter provided, shall make Loans to the Borrower, participate in Swing Loans made by the  Swing  Line  Lender  to  the  Borrower,  and  participate  in  Letters  of  Credit  (or,  if  the  Issuing  Lender, issue Letters of Credit) at the request of the Borrower, in such aggregate amount as the  Borrower  shall  request  pursuant  to  the  Commitment;  provided  that  in  no  event  shall  the                                          31  





 






   aggregate principal amount of all Loans and Letters of Credit outstanding under this Agreement  be in excess of the Total Commitment Amount.          (b)   Each  Lender,  for  itself  and  not  one  for  any  other,  agrees  to  make  Loans,  participate in Swing Loans, and participate in Letters of Credit (or, if the Issuing Lender, issue  Letters  of  Credit),  during  the  Commitment  Period,  on  such  basis  that,  immediately  after  the  completion of any borrowing by the Borrower or the issuance of a Letter of Credit:                (i)  the aggregate outstanding principal amount of Loans made by such Lender        (other than  Swing  Loans  made  by  the  Swing  Line  Lender),  when  combined  with  such        Lender’s  pro  rata  share,  if  any,  of  the  Letter  of  Credit  Exposure  and  the  Swing  Line        Exposure, shall not be in excess of the Maximum Amount for such Lender; and                      (ii)  with  respect  to  each  Specific  Commitment,  the  aggregate  outstanding        principal amount of Loans (other than Swing Loans) made by such Lender with respect to        such  Specific  Commitment  shall  represent  that  percentage  of  the  aggregate  principal        amount  then  outstanding  on  all  Loans  (other  than  Swing  Loans)  within  such  Specific        Commitment that shall be such Lender’s Applicable Commitment Percentage.          Within each Specific Commitment, each borrowing (other than Swing Loans which shall be risk  participated  on  a  pro  rata  basis)  from  the  Lenders  shall  be  made  pro  rata  according  to  the  respective Applicable Commitment Percentages of the Lenders.           (c)   The  Loans  may  be  made  as  Revolving  Loans  as  described  in  Section  2.2(a)  hereof,  as  the  Term  Loan  as  described  in  Section  2.3  hereof,  as  Swing  Loans  as  described  in  Section  2.2(c)  hereof,  and  Letters  of  Credit  may  be  issued  in  accordance  with  Section  2.2(b)  hereof.          Section 2.2.  Revolving Credit Commitment.          (a)   Revolving Loans.  Subject to the terms and conditions of this Agreement, on and  after  the  Closing  Date  and  during  the  remainder  of  the  Commitment  Period,  the  Revolving  Lenders shall make a Revolving Loan or Revolving Loans to the Borrower in such amount or  amounts as the Borrower, through an Authorized Officer, may from time to time request, but not  exceeding in aggregate principal amount at any time outstanding hereunder the Revolving Credit  Commitment, when such Revolving Loans are combined with the Letter of Credit Exposure and  the  Swing  Line  Exposure.   The  Borrower  shall  have  the  option,  subject  to  the  terms  and  conditions  set  forth  herein,  to  borrow  Revolving  Loans,  maturing  on  the  last  day  of  the  Commitment  Period,  by  means  of  any  combination  of  Base  Rate  Loans  or  Eurodollar  Loans.   Subject  to  the  provisions  of  this  Agreement,  the Borrower  shall  be  entitled  under  this  Section  2.2(a) to borrow Revolving Loans, repay the same in whole or in part and re-borrow Revolving  Loans  hereunder  at  any  time  and  from  time  to  time  during  the  Commitment  Period.   The  aggregate outstanding amount of all Revolving Loans shall be payable in full on the last day of  the Commitment Period.          (b)   Letters of Credit.                                          32  





 






                                     (i)  Generally.  Subject to the terms and conditions of this Agreement, on and  after the Closing Date and during the remainder of the Commitment Period, the Issuing  Lender shall, in its own name, on behalf of the Revolving Lenders, issue such Letters of  Credit for the account of the Borrower or a Guarantor of Payment, as the Borrower may  from time to time request.  The Borrower shall not request any Letter of Credit (and the  Issuing Lender shall not be obligated to issue any Letter of Credit) if, after giving effect  thereto,  (A)  the  Letter  of  Credit  Exposure  would  exceed  the  Letter  of  Credit  Commitment, or (B) the Revolving Credit Exposure would exceed the Revolving Credit  Commitment.  The issuance of each Letter of Credit shall confer upon each Revolving  Lender the benefits and liabilities of a participation consisting of an undivided pro rata  interest  in  the  Letter  of  Credit  to  the  extent  of  such  Revolving  Lender’s  Applicable  Commitment Percentage.          (ii)  Request for Letter of Credit.  Each request for a Letter of Credit shall be  delivered to the Administrative Agent (and to the Issuing Lender, if the Issuing Lender is  a  Lender other than  the  Administrative Agent) by  an Authorized Officer not later than  11:00 A.M. (Eastern time) three Business Days prior to the date of the proposed issuance  of  the  Letter  of  Credit  (or  such  shorter  period  as  may  be  acceptable  to  the  Issuing  Lender).   Each  such  request  shall  be  in  a  form  reasonably  acceptable  to  the  Administrative  Agent  (and  the  Issuing  Lender,  if  the  Issuing  Lender  is  a  Lender  other  than the Administrative Agent) and shall specify the face amount thereof, whether such  Letter of Credit is a commercial documentary or a standby Letter of Credit, the account  party, the beneficiary, the requested date of issuance, amendment, renewal or extension,  the  expiry  date  thereof,  and  the  nature  of  the transaction  or obligation  to  be  supported  thereby.   Concurrently  with  each  such  request,  the  Borrower,  and  any  Guarantor  of  Payment for whose account the Letter of Credit is to be issued, shall execute and deliver  to  the  Issuing  Lender  an  appropriate  application  and  agreement,  being  in  the  standard  form  of  the  Issuing  Lender  for  such  letters  of  credit,  as  amended  to  conform  to  the  provisions  of  this  Agreement  if  required  by  the  Administrative  Agent.   The  Administrative Agent shall give the Issuing Lender and each Revolving Lender notice of  each such request for a Letter of Credit.          (iii)  Commercial  Documentary  Letters  of  Credit  Fees.   With  respect  to  each  Letter  of  Credit  that  shall  be  a  commercial  documentary  letter  of  credit  and  the  drafts  thereunder, whether issued for the account of the Borrower or a Guarantor of Payment,  the Borrower agrees to (A) pay to the Administrative Agent, for the pro rata benefit of the  Revolving  Lenders,  a  non-refundable  commission  based  upon  the  face  amount  of such  Letter of Credit, which  shall be paid quarterly in arrears, on each Regularly  Scheduled  Payment Date, in an amount equal to the aggregate sum of the Letter of Credit Fee for  such Letter of Credit for each day of such quarter; (B) pay to the Administrative Agent,  for the sole benefit of the Issuing Lender, an additional Letter of Credit fee, which shall  be paid on each date that such Letter of Credit is issued, amended or renewed, at the rate  of one-eighth percent (1/8%) of the face amount of such Letter of Credit; and (C) pay to  the Administrative Agent, for the sole benefit of the Issuing Lender, such other issuance,  amendment,  renewal,  negotiation,  draw,  acceptance,  telex,  courier,  postage  and  similar                                    33  





 






                transactional  fees  as  are  customarily  charged  by  the  Issuing  Lender  in  respect  of  the  issuance and administration of similar letters of credit under its fee schedule as in effect  from time to time.          (iv)  Standby Letters of Credit Fees.  With respect to each Letter of Credit that  shall be a standby letter of credit and the drafts thereunder, if any, whether issued for the  account of the Borrower or a Guarantor of Payment, the Borrower agrees to (A) pay to  the  Administrative  Agent,  for  the  pro  rata  benefit  of  the  Revolving  Lenders,  a  non- refundable commission based upon the face amount of such Letter of Credit, which shall  be paid quarterly in arrears, on each Regularly Scheduled Payment Date, in an amount  equal to the aggregate sum of the Letter of Credit Fee for such Letter of Credit for each  day  of  such  quarter;  (B)  pay  to  the  Administrative  Agent,  for  the  sole  benefit  of  the  Issuing Lender, an additional Letter of Credit fee, which shall be paid on each date that  such  Letter  of  Credit  is  issued,  amended  or  renewed  at  the  rate  of  one-eighth  percent  (1/8%) of  the face amount of such  Letter of Credit; and (C)  pay to the  Administrative  Agent,  for  the  sole  benefit  of  the  Issuing  Lender,  such  other  issuance,  amendment,  renewal, negotiation, draw, acceptance, telex, courier, postage and similar transactional  fees  as  are  customarily  charged  by  the  Issuing  Lender  in  respect  of  the  issuance  and  administration of similar letters of credit under its fee schedule as in effect from time to  time.          (v)   Refunding of Letters of Credit with Revolving Loans.  Whenever a Letter  of Credit shall be drawn, the Borrower shall promptly reimburse the Issuing Lender for  the amount drawn.  In the event that the amount drawn shall not have been reimbursed by  the  Borrower  within  one  Business  Day  of  the  drawing  of  such  Letter  of  Credit,  the  Borrower shall be deemed to have requested a Revolving Loan, subject to the provisions  of Sections 2.2(a) and 2.6 hereof (other than the requirement set forth in Section 2.6(d)  hereof), in the amount drawn.  Such Revolving Loan shall be evidenced by the Revolving  Credit Notes (or, if a Lender has not requested a Revolving Credit Note, by the records of  the Administrative Agent and such Lender).  Each Revolving  Lender agrees to make a  Revolving  Loan  on  the  date  of  such  notice,  subject  to  no  conditions  precedent  whatsoever.  Each Revolving Lender acknowledges and agrees that its obligation to make  a  Revolving  Loan  pursuant  to  Section  2.2(a)  hereof  when  required  by  this  subpart  (v)  shall  be  absolute  and  unconditional  and  shall  not  be  affected  by  any  circumstance  whatsoever, including, without limitation, the occurrence and continuance of a Default or  Event of Default, and that its payment to the Administrative Agent, for the account of the  Issuing Lender, of the proceeds of such Revolving Loan shall be made without any offset,  abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether  or  not  the  Revolving Credit  Commitment  shall  have been  reduced  or  terminated.   The  Borrower  irrevocably  authorizes  and  instructs  the  Administrative  Agent  to  apply  the  proceeds of any borrowing pursuant to this subpart (v) to reimburse, in full (other than  the Issuing Lender’s pro rata share of such borrowing), the Issuing Lender for the amount  drawn on such Letter of Credit.  Each such Revolving Loan shall be deemed to be a Base  Rate Loan unless otherwise requested by and available to the Borrower hereunder.  Each  Revolving Lender is hereby authorized to record on its records relating to its Revolving  Credit Note (or, if such Revolving Lender has not requested a Revolving Credit Note, its                                    34  





 






                records  relating  to  Revolving  Loans)  such  Revolving  Lender’s  pro  rata  share  of  the  amounts paid and not reimbursed on the Letters of Credit.          (vi)  Participation  in  Letters  of Credit.   If,  for  any  reason,  the  Administrative  Agent (and the Issuing Lender if the Issuing Lender is a Revolving Lender other than the  Administrative Agent) shall be unable to or, in the opinion of the Administrative Agent, it  shall  be  impracticable  to,  convert  any  amount  drawn  under  a  Letter  of  Credit  to  a  Revolving Loan pursuant to the preceding subsection, the Administrative Agent (and the  Issuing Lender if the Issuing Lender is a Revolving Lender other than the Administrative  Agent) shall have the right to request that each Revolving Lender fund a participation in  the amount due with respect to such Letter of Credit, and the Administrative Agent shall  promptly  notify  each  Revolving  Lender  thereof  (by  facsimile  or  email  (in  each  case  confirmed  by  telephone)  or  telephone  (confirmed  in  writing)).   Upon  such  notice,  but  without  further  action,  the  Issuing  Lender  hereby  agrees  to  grant  to  each  Revolving  Lender, and each Revolving Lender hereby agrees to acquire from the Issuing Lender, an  undivided participation interest in the amount due with respect to such Letter of Credit in  an amount equal to such Revolving Lender’s Applicable Commitment Percentage of the  principal  amount  due  with  respect  to  such  Letter  of  Credit.   In  consideration  and  in  furtherance  of  the  foregoing,  each  Revolving  Lender  hereby  absolutely  and  unconditionally  agrees,  upon  receipt  of  notice  as  provided  above,  to  pay  to  the  Administrative  Agent,  for  the  account  of  the  Issuing  Lender,  such  Revolving  Lender’s  ratable  share  of  the  amount  due  with  respect  to  such  Letter  of  Credit  (determined  in  accordance  with  such  Revolving  Lender’s  Applicable  Commitment  Percentage).   Each  Revolving Lender acknowledges and agrees that its obligation to acquire participations in  the  amount  due  under  any  Letter  of  Credit  that  is  drawn  but  not  reimbursed  by  the  Borrower pursuant to this subsection (vi) shall  be absolute and unconditional and shall  not  be  affected  by  any  circumstance  whatsoever,  including,  without  limitation,  the  occurrence and continuance of a Default or Event of Default, and that each such payment  shall be made without any offset, abatement, recoupment, counterclaim, withholding or  reduction whatsoever and whether or not the Revolving Credit Commitment shall have  been  reduced  or  terminated.   Each  Revolving  Lender  shall  comply  with  its  obligation  under this subsection (vi) by  wire transfer of immediately  available funds, in the same  manner  as  provided  in  Section  2.6  hereof  with  respect  to  Revolving  Loans.   Each  Revolving Lender is hereby authorized to record on its records such Revolving Lender’s  pro rata share of the amounts paid and not reimbursed on the Letters of Credit.          (vii)  Auto-Renewal Letters of Credit.  If the Borrower so requests, a Letter of  Credit shall have an automatic renewal provision; provided that any Letter of Credit that  has  an  automatic  renewal  provision  must  permit  the  Administrative  Agent  (or  the  applicable Issuing Lender if the Issuing Lender is a Lender other than the Administrative  Agent) to prevent any such renewal by giving prior notice to the beneficiary thereof not  later than thirty (30) days prior to the renewal date of such Letter of Credit.  Once any  such  Letter  of  Credit  that  has  automatic  renewal  provisions  has  been  issued,  the  Revolving  Lenders  shall  be  deemed  to  have  authorized  (but  may  not  require)  the  Administrative Agent (and the Issuing Lender) to permit at any time the renewal of such                                    35  





 






                Letter  of  Credit  to  an  expiry  date  not  later  than  one  year  after  the  last  day  of  the  Commitment Period.          (viii)  Letters  of  Credit  Outstanding  Beyond  the  Commitment  Period.   If  any  Letter of Credit  is outstanding upon the termination of the Commitment, then, prior to  such  termination,  the  Borrower  shall  deposit  with  the  Administrative  Agent,  for  the  benefit of the Issuing Lender, with respect to all outstanding Letters of Credit, either cash  or a Supporting Letter of Credit, which, in each case, is (A) in an amount equal to one  hundred five percent (105%) of the undrawn amount of the outstanding Letters of Credit,  and  (B)  free  and  clear  of  all  rights  and  claims  of  third  parties.   The  cash  shall  be  deposited in an escrow account at a financial institution designated by the Issuing Lender.   The Issuing Lender shall be entitled to withdraw (with respect to the cash) or draw (with  respect  to  the Supporting  Letter of  Credit)  amounts  necessary  to  reimburse  the  Issuing  Lender for payments to be made under the Letters of Credit and any fees and expenses  associated  with  such  Letters  of  Credit,  or  incurred  pursuant  to  the  reimbursement  agreements with respect to such Letters of Credit.  The Borrower shall also execute such  documentation as the Administrative Agent or the Issuing Lender may reasonably require  in connection with the survival of the Letters of Credit beyond the Commitment or this  Agreement.  After expiration of all undrawn Letters of Credit, the Supporting Letter of  Credit or the remainder of the cash, if any, as the case may be, shall promptly be returned  to the Borrower.          (ix)  Requests for Letters of Credit When One or More Revolving Lenders Are  Affected  Lenders.   No  Letter  of  Credit  shall  be  requested  or  issued  hereunder  if  any  Revolving  Lender  is  at  such  time  an  Affected  Lender  hereunder,  unless  the  Administrative  Agent  (and  the  Issuing  Lender)  has  entered  into  satisfactory  (to  the  Administrative  Agent)  arrangements  with  the  Borrower  or  such  Affected  Lender  to  eliminate  or  mitigate  the  reimbursement  risk  with  respect  to  such  Affected  Lender  (including, without limitation, the posting of cash collateral).          (x)  Letters  of  Credit  Issued  and  Outstanding  When  One  or More  Revolving  Lenders  Are  Affected  Lenders.   With  respect  to  any  Letters  of  Credit  that  have  been  issued and are outstanding at the time any Revolving Lender is an Affected Lender, the  Administrative  Agent  (and  the  Issuing  Lender)  shall  have  the  right  to  require  that  the  Borrower or such Affected Lender cash collateralize, in form and substance satisfactory  to  the Administrative Agent  (and  the  Issuing  Lender),  such  Affected  Lender’s  pro  rata  share of such Letters of Credit so as to eliminate or mitigate the reimbursement risk with  respect to such Affected Lender.    (c)   Swing Loans.                       (i)  Generally.  Subject to the terms and conditions of this Agreement, during  the  Commitment  Period,  the  Swing  Line  Lender  shall  make  a  Swing  Loan  or  Swing  Loans  to  the  Borrower  in  such  amount  or  amounts  as  the  Borrower,  through  an  Authorized Officer, may from time to time request and to which the Swing Line Lender  may agree; provided that the Borrower shall not request any Swing Loan if, after giving                                    36  





 






                effect  thereto,  (A)  the  Revolving  Credit  Exposure  would  exceed  the  Revolving  Credit  Commitment,  or  (B)  the  Swing  Line  Exposure  would  exceed  the  Swing  Line  Commitment.  Each Swing Loan shall be due and payable on the Swing Loan Maturity  Date applicable thereto.  Each Swing Loan shall be made in Dollars.          (ii)  Refunding of Swing Loans.  If the Swing Line Lender so elects, by giving  notice to the Borrower and the Revolving Lenders, the Borrower agrees that the Swing  Line Lender shall have the right, in its sole discretion, to require that the then outstanding  Swing Loans be refinanced as a Revolving Loan.  Such Revolving Loan shall be a Base  Rate Loan unless otherwise requested by and available to the Borrower hereunder.  Upon  receipt of such notice by the Borrower and the Revolving Lenders, the Borrower shall be  deemed,  on  such  day,  to  have  requested  a  Revolving  Loan  in  the  principal  amount  of  such  Swing  Loan  in  accordance  with  Sections  2.2(a)  and  2.6  hereof  (other  than  the  requirement set forth in Section 2.6(d) hereof).  Such Revolving Loan shall be evidenced  by the Revolving Credit Notes (or, if a Revolving Lender has not requested a Revolving  Credit  Note,  by  the  records  of  the  Administrative  Agent  and  such  Revolving  Lender).   Each  Revolving  Lender  agrees  to  make  a  Revolving  Loan  on  the  date  of  such  notice,  subject  to  no  conditions  precedent  whatsoever.   Each  Revolving  Lender  acknowledges  and agrees that such Revolving Lender’s obligation to make a Revolving Loan pursuant  to  Section  2.2(a)  hereof  when  required  by  this  subsection  (ii)  is  absolute  and  unconditional  and  shall  not  be  affected  by  any  circumstance  whatsoever,  including,  without limitation, the occurrence and continuance of a Default or Event of Default, and  that its payment to the Administrative Agent, for the account of the Swing Line Lender,  of  the  proceeds  of  such  Revolving  Loan  shall  be  made  without  any  offset,  abatement,  recoupment, counterclaim, withholding or reduction whatsoever and whether or not the  Revolving  Credit  Commitment  shall  have  been  reduced  or  terminated.   The  Borrower  irrevocably  authorizes  and  instructs  the  Administrative Agent  to  apply  the proceeds  of  any borrowing pursuant to this subsection (ii) to repay in full such Swing Loan.  Each  Revolving Lender is hereby authorized to record on its records relating to its Revolving  Credit Note (or, if such Revolving Lender has not requested a Revolving Credit Note, its  records  relating  to  Revolving  Loans)  such  Revolving  Lender’s  pro  rata  share  of  the  amounts paid to refund such Swing Loan.          (iii)  Participation in Swing Loans.  If, for any reason, the Swing Line Lender is  unable to or, in the opinion of the Administrative Agent, it is impracticable to, convert  any Swing Loan to a Revolving Loan pursuant to the subsection (ii) above, then on any  day that a Swing Loan is outstanding (whether before or after the maturity thereof), the  Administrative Agent shall have the right to request that each Revolving Lender fund a  participation  in  such  Swing  Loan,  and  the  Administrative  Agent  shall  promptly  notify  each  Revolving  Lender  thereof  (by  facsimile  or  email  (in  each  case  confirmed  by  telephone) or telephone (confirmed in writing)).  Upon such notice, but without further  action, the Swing Line Lender hereby agrees to grant to each Revolving Lender, and each  Revolving  Lender hereby  agrees to acquire  from the Swing  Line  Lender, an undivided  participation  interest  in  the  right  to  share  in  the  payment  of  such  Swing  Loan  in  an  amount  equal  to  such  Revolving  Lender’s  Applicable  Commitment  Percentage  of  the  principal  amount  of  such  Swing  Loan.   In  consideration  and  in  furtherance  of  the                                    37  





 






                foregoing,  each  Revolving  Lender  hereby  absolutely  and  unconditionally  agrees,  upon  receipt of notice as provided above, to pay to the Administrative Agent, for the benefit of  the  Swing  Line  Lender,  such  Revolving  Lender’s  ratable  share  of  such  Swing  Loan  (determined  in  accordance  with  such  Revolving  Lender’s  Applicable  Commitment  Percentage).   Each  Revolving  Lender  acknowledges  and  agrees  that  its  obligation  to  acquire  participations  in  Swing  Loans  pursuant  to  this  subsection  (iii)  is  absolute  and  unconditional  and  shall  not  be  affected  by  any  circumstance  whatsoever,  including,  without limitation, the occurrence and continuance of a Default or an Event of Default,  and  that  each  such  payment  shall  be  made without  any  offset,  abatement,  recoupment,  counterclaim,  withholding  or  reduction  whatsoever  and  whether  or  not  the  Revolving  Credit Commitment shall have been reduced or terminated.  Each Revolving Lender shall  comply  with  its  obligation  under  this  subsection  (iii)  by  wire  transfer  of  immediately  available  funds,  in  the  same  manner  as  provided  in  Section  2.6  hereof  with  respect  to  Revolving Loans to be made by such Revolving Lender.          (iv)  Requests  for  Swing  Loan  When  One  or  More  Revolving  Lenders  Are  Affected  Lenders.   No  Swing  Loan  shall  be  requested  or  issued  hereunder  if  any  Revolving  Lender  is  at  such  time  an  Affected  Lender  hereunder,  unless  the  Administrative Agent has entered into satisfactory (to the Administrative Agent and the  Swing  Line  Lender)  arrangements  with  the  Borrower  or  such  Affected  Lender  to  eliminate  or  mitigate  the  reimbursement  risk  with  respect  to  such  Affected  Lender  (including, without limitation, the posting of cash collateral).          (v)   Swing  Loans  Outstanding  When  One  or  More  Revolving  Lenders  Are  Affected Lenders.  With respect to any Swing Loans that are outstanding at the time any  Revolving Lender is an Affected Lender, the Administrative Agent shall have the right to  require  that  the  Borrower  or  such  Affected  Lender  cash  collateralize,  in  form  and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  such  Affected  Lender’s  pro rata share of such Swing Loans so as to eliminate or mitigate the reimbursement risk  with respect to such Affected Lender.                 Section 2.3.  Term Loan Commitment.  [Reserved.]                 Section 2.4.  Interest.                 (a)   Revolving Loans.                       (i)  Base Rate Loan.  The Borrower shall pay interest on the unpaid principal  amount of a Revolving Loan that is a Base Rate Loan outstanding from time to time from  the date thereof until paid at the Derived Base Rate from time to time in effect.  Interest  on such Base Rate Loan shall be payable, commencing March 31, 2019, and continuing  on each Regularly Scheduled Payment Date thereafter and at the maturity thereof.          (ii)  Eurodollar Loans.  The Borrower shall pay interest on the unpaid principal  amount of each Revolving Loan that is a Eurodollar Loan outstanding from time to time,  with  the  interest  rate  to  be  fixed  in  advance  on  the  first  day  of  the  Interest  Period                                    38  





 






         applicable  thereto  through  the  last  day  of  the  Interest  Period  applicable  thereto,  at  the        Derived  Eurodollar  Rate.   Interest  on  such  Eurodollar  Loan  shall  be  payable  on  each        Interest Adjustment Date with respect to an Interest Period (provided that, if an Interest        Period  shall  exceed  three  months,  the  interest  must  also  be  paid  every  three  months,        commencing three months from the beginning of such Interest Period).                (b)   Swing Loans.  The Borrower shall pay interest to the Administrative Agent, for  the sole benefit of the Swing Line Lender (and any Revolving Lender that shall have funded a  participation  in  such  Swing  Loan),  on  the  unpaid  principal  amount  of  each  Swing  Loan  outstanding from time to time from the date thereof until paid  at the Derived Base Rate from  time to time in effect.  Interest on each Swing Loan shall be payable on the Swing Loan Maturity  Date applicable thereto.  Each Swing Loan shall bear interest for a minimum of one day.          (c)   [Reserved].          (d)   Default  Rate.   Anything  herein  to  the  contrary  notwithstanding,  if  an  Event  of  Default  shall  occur  and  be  continuing,  upon  the  election  of  the  Administrative  Agent  or  the  Required  Lenders  (i)  the  principal  of  each  Loan  and  the  unpaid  interest  thereon  shall  bear  interest,  until  paid,  at  the  Default  Rate,  (ii)  the  fee  for  the  aggregate  undrawn  amount  of  all  issued and outstanding Letters of Credit shall be increased by two percent (2%) in excess of the  rate otherwise applicable thereto, and (iii) in the case of any other amount not paid when due  from the Borrower hereunder or under any other Loan Document, such amount shall bear interest  at the Default Rate; provided that, during an Event of Default under Section 8.1 or 8.11 hereof,  the  applicable  Default  Rate  shall  apply  without  any  election  or  action  on  the  part  of  the  Administrative Agent or any Lender.          (e)   Limitation on Interest.  In no event shall the rate of interest hereunder exceed the  maximum  rate  allowable  by  law.   Notwithstanding  anything  to  the  contrary  contained  in  any  Loan  Document,  the  interest  paid  or  agreed  to  be  paid  under  the  Loan  Documents  shall  not  exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum  Rate”).   If  the  Administrative  Agent  or  any  Lender  shall  receive  interest  in  an  amount  that  exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or,  if  it  exceeds  such  unpaid  principal,  refunded  to  the  Borrower.   In  determining  whether  the  interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the  Maximum Rate, such Person may, to the extent permitted by applicable law, (i) characterize any  payment  that  is  not  principal  as  an  expense,  fee,  or  premium  rather  than  interest,  (ii)  exclude  voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread in  equal  or  unequal  parts  the  total  amount  of  interest  throughout  the  contemplated  term  of  the  Obligations.          Section 2.5.  Evidence of Indebtedness.            (a)   Revolving  Loans.   Upon  the  request  of  a  Revolving  Lender,  to  evidence  the  obligation of the Borrower to repay the portion of the Revolving Loans made by such Revolving  Lender and to pay interest thereon, the Borrower shall execute a Revolving Credit Note, payable  to  the  order  of  such  Revolving  Lender  in  the  principal  amount  equal  to  its  Applicable                                          39  





 






   Commitment  Percentage  of  the  Revolving  Amount,  or,  if  less,  the  aggregate  unpaid  principal  amount  of  Revolving  Loans  made  by  such  Revolving  Lender;  provided  that  the  failure  of  a  Revolving  Lender  to  request  a  Revolving  Credit  Note  shall  in  no  way  detract  from  the  Borrower’s obligations to such Revolving Lender hereunder.          (b)   Swing  Loans.   Upon  the  request  of  the  Swing  Line  Lender,  to  evidence  the  obligation of the Borrower to repay the Swing Loans and to pay interest thereon, the Borrower  shall execute a Swing Line Note, payable to the order of the Swing Line Lender in the principal  amount  of  the  Swing  Line  Commitment,  or,  if  less,  the  aggregate  unpaid  principal  amount  of  Swing  Loans  made  by  the  Swing  Line  Lender;  provided  that  the  failure  of  the  Swing  Line  Lender to request a Swing Line Note shall in no way detract from the Borrower’s obligations to  the Swing Line Lender hereunder.          Section 2.6.  Notice of Loans and Credit Events; Funding of Loans.          (a)   Notice  of  Loans  and  Credit  Events.   The  Borrower,  through  an  Authorized  Officer,  shall  provide  to  the  Administrative  Agent  a  Notice  of  Loan  prior  to  (i)  11:00  A.M.  (Eastern time) on the proposed date of borrowing of, or conversion of a Loan to, a Base Rate  Loan, (ii) 11:00 A.M. (Eastern time) three Business Days prior to the proposed date of borrowing  of, continuation of, or conversion of a Loan to, a Eurodollar Loan, and (iii) 2:00 P.M. (Eastern  time) on the proposed date of borrowing of a Swing Loan (or such later time as agreed to from  time to time by the Swing Line Lender).  An Authorized Officer of the Borrower may verbally  request a Loan, so long as a Notice of Loan is received by the end of the same Business Day,  and, if the Administrative Agent or any Lender provides funds or initiates funding based upon  such verbal request, the Borrower shall bear the risk with respect to any information regarding  such funding that is later determined to have been incorrect.  The Borrower shall comply with  the notice provisions set forth in Section 2.2(b) hereof with respect to Letters of Credit.          (b)   Funding of Loans.  The Administrative Agent shall notify the appropriate Lenders  of the date, amount and Interest Period (if applicable) promptly upon the receipt of a Notice of  Loan (other than for a Swing Loan, or a Revolving Loan to be funded as a Swing Loan), and, in  any event, by 2:00 P.M. (Eastern time) on the date such Notice of Loan is received.  On the date  that the Credit Event set forth in such Notice of Loan is to occur, each such Lender shall provide  to the Administrative Agent, not later than 3:00 P.M. (Eastern time), the amount in Dollars, in  federal or other immediately available funds, required of it.  If the Administrative Agent shall  elect  to  advance  the  proceeds  of  such  Loan  prior  to  receiving  funds  from  such  Lender,  the  Administrative  Agent  shall  have  the  right,  upon  prior  notice  to  the  Borrower,  to  debit  any  account  of the Borrower or otherwise  receive such amount  from  the Borrower, promptly after  demand,  in  the  event  that  such  Lender  shall  fail  to  reimburse  the  Administrative  Agent  in  accordance  with  this  subsection  (b).   The  Administrative  Agent  shall  also  have  the  right  to  receive  interest  from  such  Lender  at  the  Federal  Funds  Effective  Rate  in  the  event  that  such  Lender shall fail to provide its portion of the Loan on the date requested and the Administrative  Agent shall elect to provide such funds.          (c)   Conversion and Continuation of Loans.                                              40  





 






               (i)  At the request of the Borrower to the Administrative Agent, subject to the        notice and  other  provisions  of  this  Agreement,  the  appropriate  Lenders  shall  convert  a        Base  Rate  Loan  to  one  or  more  Eurodollar  Loans  at  any  time  and  shall  convert  a        Eurodollar Loan to a Base Rate Loan on any Interest Adjustment Date applicable thereto.         Swing  Loans  may  be  converted  by  the  Swing  Line  Lender  to  Revolving  Loans  in        accordance with Section 2.2(c)(ii) hereof.                (ii)  At the request of the Borrower to the Administrative Agent, subject to the        notice and other provisions of this Agreement, the appropriate Lenders shall continue one        or  more  Eurodollar  Loans  as  of  the  end  of  the  applicable  Interest  Period  as  a  new        Eurodollar Loan with a new Interest Period.          (d)   Minimum Amount for Loans.  Each request for:                (i)  a  Base  Rate  Loan  shall  be  in  an  amount  of  not  less  than  Five  Hundred        Thousand  Dollars  ($500,000),  increased  by  increments  of  One  Hundred  Thousand        Dollars ($100,000);                      (ii)  a  Eurodollar  Loan  shall  be  in  an  amount  of  not  less  than  Five  Hundred        Thousand  Dollars  ($500,000),  increased  by  increments  of  One  Hundred  Thousand        Dollars ($100,000); and                      (iii)  a Swing Loan may be in any amount as may be agreed to by the Swing        Line Lender.                  (e)   Interest  Periods.   The  Borrower  shall  not  request  that  Eurodollar  Loans  be  outstanding for more than six different Interest Periods at the same time.          (f)   Advancing of Non Pro-Rata Revolving Loans.  Notwithstanding anything in this  Agreement to the contrary, if the Borrower requests a Revolving Loan pursuant to Section 2.6(a)  hereof (and all conditions precedent set forth in Section 4.1 hereof are met) at a time when one or  more Revolving Lenders are Defaulting Lenders, the Administrative Agent shall have the option,  in its sole discretion, to require the non-Defaulting Lenders to honor such request by making a  non pro-rata Revolving Loan to the Borrower in an amount equal to (i) the amount requested by  the Borrower, minus (ii) the portions of such Revolving  Loan that should have been  made by  such Defaulting Lenders.  For purposes of such Revolving Loans, the Revolving Lenders that are  making such Revolving Loan shall do so in an amount equal to their Applicable Commitment  Percentages of the amount requested by the Borrower.  For the avoidance of doubt, in no event  shall the aggregate outstanding principal amount of Loans made by a Lender (other than Swing  Loans made by the Swing Line Lender), when combined with such Lender’s pro rata share, if  any,  of  the  Letter  of  Credit  Exposure  and  the  Swing  Line  Exposure,  be  in  excess  of  the  Maximum Amount for such Lender.          Section 2.7.  Payment on Loans and Other Obligations.                                            41  





 






         (a)   Payments  Generally.   Each  payment  made  hereunder  or  under  any  other  Loan  Document  by  a  Credit  Party  shall  be  made  without  any  offset,  abatement,  recoupment,  counterclaim, withholding or reduction whatsoever.          (b)   Payments  from  Borrower.   All  payments  (including  prepayments)  to  the  Administrative Agent of the principal of or interest on each Loan or other payment, including but  not  limited  to  principal,  interest,  fees  or  any  other  amount  owed  by  the  Borrower  under  this  Agreement,  shall  be  made  in  Dollars.   All  payments  described  in  this  subsection  (b)  shall  be  remitted  to  the  Administrative  Agent,  at  the  address  of  the  Administrative  Agent  for  notices  referred  to  in  Section  11.4  hereof  for  the  account  of  the  appropriate  Lenders  (or  the  Issuing  Lender or the Swing Line Lender, as appropriate) not later than 1:00 P.M. (Eastern time) on the  due  date  thereof  in  immediately  available  funds.   Any  such  payments  received  by  the  Administrative Agent (or the Issuing Lender or the Swing Line Lender) after 1:00 P.M. (Eastern  time) shall be deemed to have been made and received on the next Business Day.          (c)   Payments  to  Lenders.   Upon  the  Administrative  Agent’s  receipt  of  payments  hereunder,  the  Administrative  Agent  shall  immediately  distribute  to  the  appropriate  Lenders  (except  with  respect  to  Swing  Loans,  which  shall  be  paid  to  the  Swing  Line  Lender  and  any  Lender that has funded a participation in the Swing Loans, or, with respect to Letters of Credit,  certain of which payments shall be paid to the Issuing Lender) their respective ratable shares, if  any,  of  the  amount  of  principal,  interest,  and  commitment  and  other  fees  received  by  the  Administrative Agent for the account of such Lender.  Payments received by the Administrative  Agent shall be delivered to the Lenders in immediately available funds.  Each appropriate Lender  shall record any principal, interest or other payment, the principal amounts of Base Rate Loans,  Eurodollar Loans, Swing Loans and Letters of Credit, all prepayments and the applicable dates,  including  Interest  Periods,  with  respect  to  the  Loans  made,  and  payments  received  by  such  Lender, by such method as such Lender may generally employ; provided that failure to make any  such entry shall in no way detract from the obligations of the Borrower under this Agreement or  any Note.  The aggregate unpaid amount of Loans, types of Loans, Interest Periods and similar  information  with  respect  to  the  Loans  and  Letters  of  Credit  set  forth  on  the  records  of  the  Administrative  Agent  shall,  absent  manifest  error,  be  rebuttably  presumptive  evidence  with  respect to such information, including the amounts of principal, interest and fees owing to each  Lender.          (d)   Timing of Payments.  Whenever any payment to be made hereunder, including,  without limitation, any payment to be made on any Loan, shall be stated to be due on a day that  is not a Business Day, such payment shall be made on the next Business Day and such extension  of time shall in each case be included in the computation of the interest payable on such Loan;  provided  that,  with  respect  to  a  Eurodollar  Loan,  if  the  next  Business  Day  shall  fall  in  the  succeeding calendar month, such payment shall be made on the preceding Business Day and the  relevant Interest Period shall be adjusted accordingly.          (e)   Affected  Lenders.   To  the  extent  that  the  Administrative  Agent  receives  any  payments or other amounts for the account of a Revolving Lender that is an Affected Lender, at  the  discretion  of  the  Administrative  Agent,  such  Affected  Lender  shall  be  deemed  to  have  requested  that  the  Administrative  Agent  use  such  payment  or  other  amount  (or  any  portion                                          42  





 






   thereof, at the discretion of the Administrative Agent) first, to cash collateralize its unfunded risk  participation in Swing Loans and the Letters of Credit pursuant to Sections 2.2(b)(vi), 2.2(c)(iii)  and 2.6(b) hereof, and, with respect to any Defaulting Lender, second, to fulfill its obligations to  make Loans.          (f)   Payment  of  Non  Pro-Rata  Revolving  Loans.   Notwithstanding  anything  in  this  Agreement to the contrary, at the sole  discretion of the Administrative  Agent, in order to pay  Revolving  Loans  made  to  the  Borrower  that  were  not  advanced  pro  rata  by  the  Revolving  Lenders, any payment of any Loan may first be applied to such Revolving Loans that were not  advanced pro rata.          Section 2.8.  Prepayment.          (a)   Right to Prepay.                  (i)  The  Borrower  shall  have  the  right  at  any  time  or  from  time  to  time  to        prepay,  on  a  pro  rata  basis  for  all  of  the  appropriate  Lenders  (except  with  respect  to        Swing Loans, which shall be paid to the Swing Line Lender and any Revolving Lender        that  has  funded  a  participation  in  such  Swing  Loan),  all  or  any  part  of  the  principal        amount of the Loans then outstanding, as designated by the Borrower, representing the        obligations under any Specific Commitment with the proceeds of such prepayment to be        distributed on a pro rata basis to the holders of the Specific Commitment being prepaid.         Such payment shall include interest accrued on the amount so prepaid to the date of such        prepayment and any amount payable under Article III hereof with respect to the amount        being prepaid.  Prepayments of Loans shall be without any premium or penalty, except as        provided in Section 3.3 hereof with respect to Eurodollar Loans.  Each prepayment of the        Term  Loan  and  the  Additional  Term  Loan  Facility  (if  any)  shall  be  applied  to  the        principal installments thereof in the inverse order of their respective maturities.                 (ii)  The  Borrower  shall  have  the  right,  at  any  time  or  from  time  to  time,  to        prepay,  for  the  benefit  of  the  Swing  Line  Lender  (and  any  Revolving  Lender  that  has        funded a participation in such Swing Loan), all or any part of the principal amount of the        Swing Loans then outstanding, as designated by the Borrower, plus interest accrued on        the amount so prepaid to the date of such prepayment.                       (iii)  Notwithstanding anything in this Section 2.8 or otherwise to the contrary,        at the discretion of the Administrative Agent, in order to prepay Revolving Loans made        to  the Borrower  that  were  not  advanced  pro  rata  by  all  of the Revolving  Lenders,  any        prepayment of a Revolving Loan shall first be applied to Revolving Loans made by the        Revolving Lenders during any period in which a Defaulting Lender or Insolvent Lender        shall exist.          (b)   Notice  of  Prepayment.   The  Borrower  shall  give  the  Administrative  Agent  irrevocable written notice of prepayment of (i) a Base Rate Loan or Swing Loan by no later than  11:00 A.M. (Eastern time) on the Business Day on which such prepayment is to be made, and (ii)  a  Eurodollar  Loan  by  no  later  than  1:00  P.M.  (Eastern  time)  three  Business  Days  before  the                                          43  





 






   Business Day on which such prepayment is to be made.  Swing Loans may be prepaid without  advance  notice  if  prepaid  through  a  “sweep”  cash  management  arrangement  with  the  Administrative Agent.          (c)   Minimum Amount for Eurodollar Loans.  Each prepayment of a Eurodollar Loan  shall be in the principal amount of not less than the lesser of Five Hundred Thousand Dollars  ($500,000), or the principal amount of such Loan, or, with respect to a Swing Loan, the principal  balance  of  such  Swing  Loan,  except  in  the  case  of  a  mandatory  payment  pursuant  to  Section  2.12(c) or Article III hereof.          Section 2.9.  Commitment and Other Fees.          (a)   Commitment Fee.  The Borrower shall pay to the Administrative Agent, for the  ratable  account  of  the  Revolving  Lenders,  as  a  consideration  for  the  Revolving  Credit  Commitment, a commitment fee, for each day from the Closing Date through the last day of the  Commitment Period, in an amount equal to (i) (A) the Revolving Amount at the end of such day,  minus  (B)  the  Revolving  Credit  Exposure  at  the  end  of  such  day,  multiplied  by  (ii)  the  Applicable Commitment Fee Rate in effect on such day divided by three hundred sixty (360).   The commitment fee shall be payable quarterly in arrears, commencing on March 31, 2019 and  continuing  on  each  Regularly  Scheduled  Payment  Date  thereafter,  and  on  the  last  day  of  the  Commitment Period.          (b)   Administrative Agent Fee.  The Borrower shall pay to the Administrative Agent,  for its sole benefit, the fees set forth in the Administrative Agent Fee Letter.          Section 2.10.  Modifications to Commitment.          (a)   Optional Reduction of Revolving Credit Commitment.  The Borrower may at any  time and from time to time permanently reduce in whole or ratably in part the Revolving Amount  to  an  amount  not  less  than  the  then  existing  Revolving  Credit  Exposure,  by  giving  the  Administrative Agent not fewer than three (3) Business Days’ written notice of such reduction,  provided that any such partial reduction shall be in an aggregate amount, for all of the Lenders,  of  not  less  than  Two  Million  Five  Hundred  Thousand  Dollars  ($2,500,000),  increased  in  increments  of  Five  Hundred  Thousand  Dollars  ($500,000).   The  Administrative  Agent  shall  promptly notify each Revolving Lender of the date of each such reduction and such Revolving  Lender’s  proportionate  share  thereof.   After  each  such  partial  reduction,  the  commitment  fees  payable  hereunder  shall  be  calculated  upon  the  Revolving  Amount  as  so  reduced.   If  the  Borrower  reduces  in  whole  the  Revolving  Credit  Commitment,  on  the  effective  date  of  such  reduction (the Borrower having prepaid in full the unpaid principal balance, if any, of the Loans,  together with all interest (if any) and commitment and other fees accrued and unpaid with respect  thereto, and provided that no Letter of Credit Exposure or Swing Line Exposure shall exist), all  of the Revolving Credit Notes shall be delivered to the Administrative Agent marked “Canceled”  and the Administrative Agent shall redeliver such Revolving Credit Notes to the Borrower.  Any  partial  reduction  in  the  Revolving  Amount  shall  be  effective  during  the  remainder  of  the  Commitment  Period.   Upon  each  decrease  of  the  Revolving  Amount,  the  Total  Commitment  Amount shall be decreased by the same amount.                                          44  





 






                               (b)   Increase in Commitment.                        (i)  At any time during the Commitment  Increase Period, the Borrower may  request  that  the  Administrative  Agent  increase  the  Total  Commitment  Amount  by  (A)  increasing the Revolving Amount, or (B) adding an additional term loan facility to this  Agreement (the “Additional Term Loan Facility”) (which Additional Term Loan Facility  shall  be  subject  to  subsection  (c)  below);  provided  that  the  aggregate  amount  of  all  increases  (revolver  and  term)  made  pursuant  to  this  subsection  (b)  shall  not  exceed  Twenty-Five  Million  Dollars  ($25,000,000)  (the  “Aggregate  Increase  Amount”).   Each  such  request  for  an  increase  shall  be  in  an  amount  of  at  least  Five  Million  Dollars  ($5,000,000), increased by increments of One Million Dollars ($1,000,000), and may be  made by either (1) increasing, for one or more Lenders, with their prior written consent,  their respective Revolving Credit Commitments, (2) adding a new commitment for one or  more Lenders, with their prior written consent, with respect to the Additional Term Loan  Facility, or (3) including one or more Additional Lenders, each with a new commitment  (in a minimum amount of at least Five Million Dollars ($5,000,000)) under the Revolving  Credit Commitment or the Additional Term Loan Facility, as a party to this Agreement  (each  an  “Additional  Commitment”  and,  collectively,  the  “Additional  Commitments”).   For clarification purposes, nothing contained in this Section 2.10(b) shall be construed as  a  commitment  by  any  Lender  to  make  any  Additional  Commitment  and  any  such  commitment by a Lender shall be at such Lender’s sole and absolute discretion.          (ii)  During the Commitment Increase Period, all of the Lenders agree that the  Administrative  Agent,  in  its  sole  discretion,  may  permit  one  or  more  Additional  Commitments  upon  satisfaction  of  the  following  requirements:  (A)  each  Additional  Lender,  if  any,  shall  execute  an  Additional  Lender  Assumption  Agreement,  (B)  the  Administrative Agent shall provide to the Borrower and each Lender a revised Schedule  1 to this Agreement, including revised Applicable Commitment Percentages for each of  the  Lenders,  if  appropriate,  at  least  three  Business  Days  prior  to  the  date  of  the  effectiveness of such Additional Commitments (each an “Additional Lender Assumption  Effective Date”), and (C) the Borrower shall  execute and deliver to the  Administrative  Agent and the applicable Lenders such appropriate replacement or additional Revolving  Credit Notes or Term Notes as shall be required by the Administrative Agent (if Notes  have  been  requested  by  such  Lender  or  Lenders).   The  Lenders  hereby  authorize  the  Administrative  Agent  to  execute  each  Additional  Lender  Assumption  Agreement  on  behalf of the Lenders.          (iii)  On each Additional Lender Assumption Effective Date with respect to the  Specific  Commitment  being  increased,  as  appropriate,  the  Lenders  shall  make  adjustments among themselves with respect to the Loans then outstanding and amounts  of principal, interest, commitment fees and other amounts paid or payable with respect  thereto  as  shall  be  necessary,  in  the  opinion  of  the  Administrative  Agent,  in  order  to  reallocate among the applicable Lenders such outstanding amounts, based on the revised  Applicable Commitment Percentages and to otherwise carry out fully the intent and terms  of this subsection (b) (and the Borrower shall pay to the applicable Lenders any amounts                                    45  





 






         that  would  be  payable  pursuant  to  Section  3.3  hereof  if  such  adjustments  among  the        applicable  Lenders  would  cause  a  prepayment  of  one  or  more  Eurodollar  Loans).   In        connection  therewith,  it  is  understood  and  agreed  that  the  Maximum  Amount  of  any        Lender  will  not  be  increased  (or  decreased  except  pursuant  to  subsection  (a)  above)        without  the prior  written  consent  of such  Lender.   The Borrower shall  not  request  any        increase in the Total Commitment Amount pursuant to this subsection (b) if a Default or        an Event of Default shall then exist, or, after giving pro forma effect to any such increase,        would exist.  At the time of any such increase, at the request of the Administrative Agent,        the Credit Parties and the Lenders shall enter into an appropriate amendment to evidence        such increase and to address related provisions as deemed necessary or appropriate by the        Administrative Agent.  Upon each increase of the Revolving Amount or addition of the        Additional Term Loan Facility, the Total Commitment Amount shall be increased by the        same amount.          (c)   Additional Term Loan Facility.                  (i)  The Additional  Term  Loan  Facility  (A) shall  rank  pari  passu  in  right  of        payment with the Revolving Loans and the Term Loan, (B) shall not mature earlier than        the last day of the Commitment Period (but may have amortization prior to such date),        and (C) shall be treated substantially the same as (and in any  event no more favorably        than)  the  Revolving  Loans  and  the  Term  Loan,  including,  without  limitation,  similar        amortization and interest for the Additional Term Loan Facility.                      (ii)  The Additional Term  Loan Facility may be added hereunder pursuant to        an amendment or restatement (the “Additional Term Loan Facility Amendment”) of this        Agreement  and,  as  appropriate,  the  other  Loan  Documents,  executed  by  the  Borrower,        each Lender providing a commitment with respect to the Additional Term Loan Facility,        each  Additional  Lender  providing  a  commitment  with  respect  to  the  Additional  Term        Loan  Facility,  and  the  Administrative  Agent.   Notwithstanding  anything  herein  to  the        contrary, the Additional Term Loan Facility Amendment may, without the consent of any        other Lenders, effect such amendments to this Agreement and the other Loan Documents        as  may  be  necessary  or  appropriate,  in  the  reasonable  opinion  of   the  Administrative        Agent,  to  effect  the  provisions  of  Section  2.10(b)  and  (c)  hereof  (including,  without        limitation, amendments to the definitions in this Agreement  and Section  9.8 hereof for        the  purpose  of  treating  such  Additional  Term  Loan  Facility  pari  passu  with  the  other        Loans).          Section 2.11.  Computation of Interest and Fees.  With the exception of Base Rate Loans,  interest on Loans, Letter of Credit fees, Related Expenses and commitment and other fees and  charges hereunder shall be computed on the basis of a year having three hundred sixty (360) days  and calculated for the actual number of days elapsed.  With respect to Base Rate Loans, interest  shall  be  computed  on  the  basis  of  a  year  having  three  hundred  sixty-five  (365)  days  or  three  hundred sixty-six (366) days, as the case may be, and calculated for the actual number of days  elapsed.          Section 2.12.  Mandatory Payments.                                          46  





 






           (a)   Revolving Credit Exposure.  If, at any time, the Revolving Credit Exposure shall  exceed the Revolving Credit Commitment, the Borrower shall, as promptly as practicable, but in  no event later than the next Business Day, pay an aggregate principal amount of the Revolving  Loans  sufficient  to  bring  the  Revolving  Credit  Exposure  within  the  Revolving  Credit  Commitment.          (b)   Swing Line Exposure.  If, at any time, the Swing Line Exposure shall exceed the  Swing Line Commitment, the Borrower shall, as promptly as practicable, but in no event later  than the next Business Day, pay an aggregate principal amount of the Swing Loans sufficient to  bring the Swing Line Exposure within the Swing Line Commitment.          (c)   Mandatory  Prepayments.   The  Borrower  shall,  until  the  Term  Loan  and  the  Additional Term Loan Facility (if any) are paid in full, make Mandatory Prepayments (each a  “Mandatory Prepayment”) in accordance with the following provisions:                (i)  Sale  of  Assets.   Upon  any  Non-Exempt  Asset  Sale,  the  Borrower  shall        make  a  Mandatory  Prepayment,  on  the  date  of  such  Non-Exempt  Asset  Sale,  in  an        amount equal to one hundred percent (100%) of the proceeds of such Non-Exempt Asset        Sale  (net  of  amounts  required  to  pay  taxes  and  reasonable  costs,  fees  and  expenses        applicable to such Non-Exempt Asset Sale).                      (ii)  Material  Recovery  Event.   Within  ten  (10)  Business  Days  after  the        occurrence  of  a  Material  Recovery  Event,  the  Borrower  shall  furnish  to  the        Administrative Agent written notice thereof.  Within thirty (30) days after such Material        Recovery Event, the Borrower shall notify the Administrative Agent of the Borrower’s        determination as to whether or not to replace, rebuild or restore the affected property (a        “Material  Recovery  Determination  Notice”).   If  the  Borrower  decides  not  to  replace,        rebuild  or  restore  such  property,  or  if  the  Borrower  has  not  delivered  the  Material        Recovery  Determination  Notice  within  thirty  (30)  days  after  such  Material  Recovery        Event, then the net proceeds of insurance paid in connection with such Material Recovery        Event,  when  received,  shall  be  paid  to  the  Administrative  Agent  as  a  Mandatory        Prepayment.   If the Borrower decides to replace, rebuild or restore such property, then        any such replacement, rebuilding or restoration must be (A) commenced within six (6)        months  of  the  date  of  the  Material  Recovery  Event,  and  (B)  substantially  completed        within  twelve  (12)  months  of  such  commencement  date  or  such  longer  period  of  time        necessary to complete the work with reasonable diligence and approved in writing by the        Administrative Agent, in its reasonable discretion, with such casualty insurance proceeds        and  other  funds  available  to  the  appropriate  Companies  for  replacement,  rebuilding  or        restoration of such property.  Any amounts of such net insurance proceeds in connection        with such Material Recovery Event not applied to the costs of replacement or restoration        shall be applied as a Mandatory Prepayment.                      (iii)  Additional Indebtedness.  If, at any time, any of the Companies shall incur        Indebtedness (other than Indebtedness permitted pursuant to Section 5.8 hereof), which        Indebtedness shall not be incurred without the prior written consent of the Administrative                                          47  





 






         Agent and the Required Lenders, the Borrower shall make a Mandatory Prepayment, on        the date that such Indebtedness is incurred, in an amount equal to one hundred percent        (100%) of the net cash proceeds of such Indebtedness, net of costs and expenses related        thereto.          (d)   Application of Mandatory Prepayments                (i)  Involving a Company Prior to an Event of Default.  So long as no Event of        Default shall have occurred, each Mandatory Prepayment required to be made pursuant to        subsection (c) above shall be applied (A) first, on a pro rata basis among: (1) the Term        Loan, and (2) the Additional Term Loan Facility, until paid in full, and (B) second, to any        outstanding Revolving Loans.                      (ii)  Involving  a  Company  After  an  Event  of  Default.   If  a  Mandatory        Prepayment is required to be made pursuant to subsection (c) above at the time that an        Event of Default shall have occurred, then such Mandatory Prepayment shall be paid by        the Borrower to the Administrative Agent to be applied to the following, on a pro rata        basis  among:  (A)  the  Revolving  Amount  (with  payments  to  be  made  in  the  following        order: Revolving Loans, Swing Loans, and to be held by the Administrative Agent in a        special account as security for any Letter of Credit Exposure pursuant to subsection (iii)        hereof), (B) the unpaid principal balance of the Term Loan, and (C) the unpaid principal        balance of any Additional Term Loan Facility.  Unless otherwise agreed by the Required        Revolving Lenders, the Revolving Credit Commitment shall be permanently reduced by        the amount of such Mandatory Prepayment allocated thereto, whether or not there shall        be any Credit Exposure thereunder; provided  that,  if there shall be no Credit Exposure        under any Specific Commitment, the then remaining Mandatory Prepayment shall be paid        to the other Specific Commitments.                      (iii)  Involving Letters of Credit.  Any amounts to be distributed for application        to  a  Revolving  Lender’s  liabilities  with  respect  to  any  Letter  of  Credit  Exposure  as  a        result  of  a  Mandatory  Prepayment  shall  be  held  by  the  Administrative  Agent  in  an        interest bearing trust account (the “Special Trust Account”) as collateral security for such        liabilities until a drawing on any Letter of Credit, at which time such amounts, together        with interest accrued thereon, shall be released by the Administrative Agent and applied        to such liabilities.  If any such Letter of Credit shall expire without having been drawn        upon in full, the amounts held in the Special Trust Account with respect to the undrawn        portion of such Letter of Credit, together with interest accrued thereon, shall be applied        by the Administrative Agent in accordance with the provisions of subsections (i) and (ii)        above.                      (e)   Mandatory Payments Generally.  Unless  otherwise designated by the Borrower,  each Mandatory Prepayment made with respect to a Specific Commitment pursuant to subsection  (a) or (c) above shall be applied in the following order: (i) first, to the outstanding Base Rate  Loans, and (ii) second, to the outstanding Eurodollar Loans, provided that, in each case, if the  outstanding principal amount of any Eurodollar Loan shall be reduced to an amount less than the  minimum amount set forth in Section 2.6(d)  hereof as a result of such prepayment, then such                                          48  





 






   Eurodollar Loan shall be converted into a Base Rate Loan on the date of such prepayment.  Any  prepayment of a Eurodollar Loan or Swing Loan pursuant to this Section 2.12 shall be subject to  the  prepayment  provisions  set  forth  in  Article  III  hereof.   Each  Mandatory  Prepayment  made  with regard to the Term Loan and the Additional Term Loan Facility (if any) shall be applied to  the payments of principal in the inverse order of their respective maturities.  For the avoidance of  doubt, any amounts paid to the Borrower in settlement of (or as a judgment rendered in favor of  the  Borrower  in  connection  with)  pending  litigation  concerning  the  non-payment  by  Verizon  Wireless  of  the  Borrower’s  inter-carrier  compensation  charges  will  not  be  subject  to  any  mandatory prepayment or sweep requirements.          Section 2.13.  Swap Obligations Keepwell Provision.  The Borrower, to the extent that it  is  an  “eligible  contract  participant”  as  defined  in  the  Commodity  Exchange  Act,  hereby  absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as  may be needed from time to time by each other Credit Party in order for such Credit Party to  honor  its  obligations  under  the  Loan  Documents  in  respect  of  the  Swap  Obligations.  The  obligations of the Borrower under this Section 2.13 shall remain in full force and effect until all  Secured Obligations are paid in full. The Borrower intends that this Section 2.13 constitute, and  this Section 2.13 shall be deemed to constitute, a “keepwell, support, or other agreement” for the  benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity  Exchange Act.                   ARTICLE III.  ADDITIONAL PROVISIONS RELATING TO                EURODOLLAR LOANS; INCREASED CAPITAL; TAXES          Section 3.1.  Requirements of Law.          (a)   If, after the Closing Date, (i) the adoption of or any change in any Requirement of  Law  or  in  the  interpretation  or  application  thereof  by  a  Governmental  Authority,  or  (ii) the  compliance by any Lender with any request or directive (whether or not having the force of law)  from any central bank or other Governmental Authority:                (A)   shall subject any Lender to any Taxes (other than (1) Indemnified Taxes,        (2) Taxes described in subparts (b) through (d) of the definition of Excluded Taxes and        (3) Connection Income Taxes) with respect to this Agreement, any Letter of Credit or any        Eurodollar Loan made by it;                      (B)   shall  impose,  modify  or  hold  applicable  any  reserve,  special  deposit,        insurance charge, compulsory loan or similar requirement against assets held by, deposits        or other liabilities in or for the account of, advances, loans or other extensions of credit        by, or any other acquisition of funds by, any office of such Lender that is not otherwise        included in the determination of the Eurodollar Rate; or                      (C)  shall impose on such Lender any other condition;                                            49  





 






   and the result of any of the foregoing is to increase the cost to such Lender of making, converting  into, continuing or maintaining Eurodollar Loans or issuing or participating in Letters of Credit,  or  to  reduce  any  amount  receivable  hereunder  in  respect  thereof,  then,  in  any  such  case,  the  Borrower  shall  pay  to  such  Lender,  promptly  after  receipt  of  a  written  request  therefor,  any  additional  amounts  necessary  to  compensate  such  Lender  for  such  increased  cost  or  reduced  amount receivable.  If any Lender becomes entitled to claim any additional amounts pursuant to  this  subsection  (a),  such  Lender  shall  promptly  notify  the  Borrower  (with  a  copy  to  the  Administrative Agent) of the event with reasonable detail by reason of which it has become so  entitled.          (b)   If any Lender shall have determined that, after the Closing Date, the adoption of  or any change in any Requirement of Law regarding capital adequacy or liquidity, or liquidity  requirements,  or  in  the  interpretation  or  application  thereof  by  a  Governmental  Authority  or  compliance  by  such  Lender  or  any  corporation  controlling  such  Lender  with  any  request  or  directive regarding capital adequacy or liquidity (whether or not having the force of law) from  any Governmental Authority shall have the effect of reducing the rate of return on such Lender’s  or such corporation’s capital as a consequence of its obligations hereunder, or under or in respect  of any Letter of Credit, to a level below that which such Lender or such corporation could have  achieved but for such adoption, change or compliance (taking into consideration the policies of  such Lender or such corporation with respect to capital adequacy and liquidity), then from time  to  time,  upon  submission  by  such  Lender  to  the  Borrower  (with  a  copy  to  the  Administrative  Agent) of a written request therefor (which shall include the method for calculating such amount  and reasonable detail with respect to such calculation), the Borrower shall promptly pay or cause  to be paid to such Lender such additional amount or amounts as will compensate such Lender or  such corporation for such reduction.          (c)   For purposes of this Section 3.1 and Section 3.5(a) hereof, the Dodd-Frank Act,  any  requests,  rules,  guidelines  or  directives  concerning  capital  adequacy  promulgated  by  the  Bank  for  International  Settlements,  or  the  Basel  Committee  on  Banking  Regulations  and  Supervisory  Practices  (or  any  successor  or  similar  authority)  under  Basel  III,  and  any  rules,  regulations, orders, requests, guidelines and directives adopted, promulgated or implemented in  connection  with  any  of  the  foregoing,  regardless  of  the  date  adopted,  issued,  promulgated  or  implemented, are deemed to have been introduced and adopted after the Closing Date.          (d)   A  certificate  as  to  any  additional  amounts  payable  pursuant  to  this  Section 3.1  together with a reasonably detailed calculation and description of such amounts contemplated by  this  Section 3.1,  submitted  by  any  Lender to  the  Borrower  (with  a copy  to  the Administrative  Agent) shall be rebuttably presumptive evidence as to such additional amounts. In determining  any such additional amounts, such Lender may use any method of averaging and attribution that  it  (in  its  reasonable  credit  judgment)  shall  deem  applicable.   The  obligations  of  the  Borrower  pursuant to this Section 3.1 shall survive the termination of this Agreement and the payment of  the Loans and all other amounts payable hereunder.          (e)   Notwithstanding the foregoing, no Lender shall be entitled to any indemnification  or reimbursement pursuant to this Section 3.1 to the extent such Lender has not made demand                                          50  





 






   therefore (as set forth above) within one year after the occurrence of the event giving rise to such  entitlement or, if later, such Lender having knowledge of such event.          Section 3.2.  Taxes.          (a)   All payments made by any Credit Party under any Loan Document shall be made  free  and  clear  of,  and  without  deduction  or  withholding  for  any  Taxes,  except  as  required  by  applicable law.  If any applicable law (as determined in the good faith discretion of an applicable  withholding agent) requires the deduction or withholding of any Tax from any such payment by  a  withholding  agent,  then  the  applicable  withholding  agent  shall  be  entitled  to  make  such  deduction  or  withholding  and  shall  timely  pay  the  full  amount  deducted  or  withheld  to  the  relevant  Governmental  Authority  in  accordance  with  applicable  law  and,  if  such  Tax  is  an  Indemnified  Tax,  then  the  sum  payable  by  the  applicable  Credit  Party  shall  be  increased  as  necessary so that after such deduction or withholding has been made (including such deductions  and  withholdings  applicable  to  additional  sums  payable  under  this  Section  3.2),  the  Administrative Agent or applicable Lender receives an amount equal to the sum it would have  received had no such deduction or withholding been made.  The Credit Parties shall timely pay  to the relevant Governmental Authority in accordance with applicable law, or at the option of the  Administrative Agent timely reimburse it for, Other Taxes.          (b)   As  promptly  as  possible  after  any  payment  of  Taxes  by  any  Credit  Party  to  a  Governmental  Authority  pursuant  to  this  Section  3.2,  such  Credit  Party  shall  deliver  to  the  Administrative Agent the original or a certified copy of a receipt issued by such Governmental  Authority  evidencing  such  payment,  a  copy  of  the  return  reporting  such  payment,  or  other  evidence  of  such  payment  reasonably  satisfactory  to  the  Administrative  Agent.   The  Credit  Parties  shall  indemnify  the  Administrative  Agent  and  the  appropriate  Lenders  promptly  upon  demand for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or  asserted  on  or  attributable  to  amounts  payable  under  this  Section  3.2)  payable  or  paid  by  the  Administrative Agent or such Lender or required to be withheld or deducted from a payment to  the Administrative Agent or such Lender and any reasonable expenses arising therefrom or with  respect  thereto,  whether  or  not  such  Indemnified  Taxes  were  correctly  or  legally  imposed  or  asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment  or liability delivered to any Credit Party by a Lender (with a copy to the Administrative Agent),  or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive  absent manifest error.          (c)   If any party determines, in its sole discretion exercised in good faith, that it has  received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.2  (including by the payment of additional amounts pursuant to this Section 3.2), it shall pay to the  indemnifying  party  an  amount  equal  to  such  refund  (but  only  to  the  extent  of  indemnity  payments made under this Section 3.2 with respect to the Taxes giving rise to such refund), net  of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest  (other  than  any  interest  paid  by  the  relevant  Governmental  Authority  with  respect  to  such  refund).   Such  indemnifying  party,  upon  the  request  of  such  indemnified  party,  shall  repay  to  such indemnified party the amount paid over pursuant to this subsection (c) (plus any penalties,  interest or other charges imposed by the relevant Governmental Authority) in the event that such                                          51  





 






   indemnified  party  is  required  to  repay  such  refund  to  such  Governmental  Authority.   Notwithstanding anything to the contrary in this subsection (c), in no event will the indemnified  party be required to pay any amount to an indemnifying party pursuant to this subsection (c) the  payment of which would place the indemnified party in a less favorable net after-Tax position  than the indemnified party would have been in if the Tax subject to indemnification and giving  rise  to  such  refund  had  not  been  deducted,  withheld  or  otherwise  imposed  and  the  indemnification payments or additional amounts with respect to such Tax had never been paid.   This paragraph shall not be construed to require any indemnified party to make available its Tax  returns  (or  any  other  information  relating  to  its  Taxes  that  it  deems  confidential)  to  the  indemnifying party or any other Person.          (d)   Any Lender that is entitled to an exemption from or reduction of withholding Tax  with respect to payments made under any Loan Document shall deliver to the Borrower and the  Administrative  Agent,  at  the  time  or  times  reasonably  requested  by  the  Borrower  or  the  Administrative  Agent,  such  properly  completed  and  executed  documentation  reasonably  requested by the Borrower or the Administrative Agent as will permit such payments to be made  without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably  requested by the Borrower or the Administrative Agent, shall deliver such other documentation  prescribed  by  applicable  law  or  reasonably  requested  by  the  Borrower  or  the  Administrative  Agent as will enable the Borrower or the Administrative Agent to determine whether or not such  Lender is subject to backup withholding or information reporting requirements.  Notwithstanding  anything  to  the  contrary  in  the  preceding  two  sentences,  the  completion,  execution  and  submission  of  such  documentation  (other  than  such  documentation  set  forth  in  Section  3.2(e)(ii)(A)  and  (ii)(B)  and  Section  3.2(f)  below)  shall  not  be  required  if  such  completion,  execution  or  submission  would  subject  such  Lender  to  any  material  unreimbursed  cost  or  expense or would materially prejudice the legal or commercial position of such Lender.          (e)   Without limiting the generality of the foregoing, in the event that the Borrower is  a U.S. Person:                (i)  any  Lender  that  is  a  U.S.  Person  shall  deliver  to  the  Borrower  and  the        Administrative Agent on or prior to the date on  which such  Lender becomes a Lender        under this Agreement (and from time to time thereafter upon the reasonable request of the        Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying        that such Lender is exempt from U.S. federal backup withholding tax;                      (ii)  any  Foreign  Lender  shall,  to  the  extent  it  is  legally  entitled  to  do  so,        deliver to the Borrower and the Administrative Agent (in such number of copies as shall        be  requested  by  the  recipient)  on  or  prior  to  the  date  on  which  such  Foreign  Lender        becomes  a  Lender  under  this  Agreement  (and  from  time  to  time  thereafter  upon  the        reasonable  request  of  the  Borrower  or  the  Administrative  Agent),  whichever  of  the        following is applicable:                      (A)   in the case of a Foreign Lender claiming the benefits of an income              tax  treaty  to  which  the  U.S.  is  a  party  (1)  with  respect  to  payments  of  interest              under  any  Loan  Document,  executed  originals  of  IRS  Form  W-8BEN-E                                          52  





 






               establishing  an  exemption  from,  or  reduction  of,  U.S.  federal  withholding  Tax              pursuant  to  the  “interest”  article  of  such  tax  treaty,  and  (2)  with  respect  to  any              other  applicable  payments  under  any  Loan  Document,  IRS  Form  W-8BEN-E              establishing  an  exemption  from,  or  reduction  of,  U.S.  federal  withholding  Tax              pursuant to the “business profits” or “other income” article of such tax treaty;                                  (B)   in the case of a Foreign Lender claiming that its extension of credit              will generate U.S. effectively connected income, executed originals of IRS Form              W-8ECI;                                  (C)  in  the  case  of  a  Foreign  Lender  claiming  the  benefits  of  the              exemption for portfolio interest under Section 881(c) of the Code, (1) a certificate              substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is              not  a  “bank”  within  the  meaning  of  Section  881(c)(3)(A)  of  the  Code,  a  “10              percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of              the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C)              of the Code (a “U.S. Tax Compliance Certificate”), and (2) executed originals of              IRS Form W-8BEN-E; or                                  (D)   to  the  extent  a  Foreign  Lender  is  not  the  Beneficial  Owner,              executed  originals  of  IRS  Form  W-8IMY  (latest  version),  accompanied  by  IRS              Form  W-8ECI  (latest  version),  IRS  Form  W-8BEN-E,  a  U.S.  Tax  Compliance              Certificate substantially in the form of Exhibit G-2 or Exhibit G -3, IRS Form W              9,  and/or  other  certification  documents  from  each  Beneficial  Owner,  as              applicable; provided that if the Foreign Lender is a partnership and one or more              direct  or  indirect  partners  of  such  Foreign  Lender  are  claiming  the  portfolio              interest  exemption,  such  Foreign  Lender  may  provide  a  U.S.  Tax  Compliance              Certificate substantially in the form of Exhibit G -4 on behalf of each such direct              and indirect partner; and                (iii)  any  Foreign  Lender  shall,  to  the  extent  it  is  legally  entitled  to  do  so,        deliver to the Borrower and the Administrative Agent (in such number of copies as shall        be  requested  by  the  recipient)  on  or  prior  to  the  date  on  which  such  Foreign  Lender        becomes  a  Lender  under  this  Agreement  (and  from  time  to  time  thereafter  upon  the        reasonable request of the Borrower or the Administrative Agent), executed originals of        any other form prescribed by applicable law as a basis for claiming exemption from or a        reduction  in  U.S.  federal  withholding  Tax,  duly  completed,  together  with  such        supplementary  documentation  as  may  be  prescribed  by  applicable  law  to  permit  the        Borrower  or  the  Administrative  Agent  to  determine  the  withholding  or  deduction        required to be made.          (f)   If a payment made to a Lender under any  Loan  Document would be subject to  U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the  applicable reporting  requirements of FATCA (including those contained in Section 1471(b) or  1472(b)  of  the  Code,  as  applicable),  such  Lender  shall  deliver  to  the  Borrower  and  the  Administrative Agent at the time or times prescribed by law and at such time or times reasonably                                          53  





 






   requested  by  the  Borrower  or  the  Administrative  Agent  such  documentation  prescribed  by  applicable  law  (including  as  prescribed  by  Section  1471(b)(3)(C)(i)  of  the  Code)  and  such  additional documentation reasonably requested by the Borrower or the Administrative Agent as  may  be  necessary  for  the  Borrower  and  the  Administrative  Agent  to  comply  with  their  obligations under FATCA and to determine that such Lender has complied with such Lender’s  obligations  under  FATCA  or  to  determine  the  amount  to  deduct  and  withhold  from  such  payment.  Solely  for purposes of this subsection (f), “FATCA” shall include any  amendments  made  to  FATCA  after  the  date  of  this  Agreement.   Each  Lender  agrees  that  if  any  form  or  certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it  shall update such form or certification or promptly notify the Borrower and the Administrative  Agent in writing of its legal inability to do so.          (g)   For the purposes of this Section 3.2, (i) the term “Lender” includes any  Issuing  Lender, and (ii) the term “applicable law” includes FATCA.            (h)   The  agreements  in  this  Section  3.2  shall  survive  the  termination  of  the  Loan  Documents and the payment of the Loans and all other amounts payable hereunder.          Section 3.3.  Funding Losses.  The Borrower agrees to indemnify each Lender, promptly  after receipt of a written request therefor, and to hold each Lender harmless from, any loss or  expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in  making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower  has given a notice (including a written or verbal notice that is subsequently revoked) requesting  the same in accordance  with the provisions of this Agreement, (b) default by the Borrower in  making any prepayment of or conversion from Eurodollar Loans after the Borrower has given a  notice (including a written or verbal notice that is subsequently revoked) thereof in accordance  with the provisions of this Agreement, (c) the making of a prepayment of a Eurodollar Loan on a  day that is not the last day of an Interest Period applicable thereto, or (d) any conversion of a  Eurodollar  Loan  to  a  Base  Rate  Loan  on  a  day  that  is  not  the  last  day  of  an  Interest  Period  applicable thereto.  Such indemnification shall be in an amount equal to the excess, if any, of (i)  the amount of interest that would have accrued on the amounts so prepaid, or not so borrowed,  converted or  continued,  for the period from  the  date of such  prepayment  or of such failure to  borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to  borrow, convert or continue, the Interest Period that would have commenced on the date of such  failure) or the applicable Swing Loan Maturity Date in each case at the applicable rate of interest  for such Loans provided for herein (excluding, however, the Applicable Margin included therein,  if any) over (ii) the  amount of interest  (as  reasonably  determined by such  Lender) that would  have  accrued  to  such  Lender  on  such  amount  by  placing  such  amount  on  deposit  for  a  comparable period with leading banks in the appropriate London interbank market, along with  any administration fee charged by such Lender.  A certificate as to any amounts payable pursuant  to this Section 3.3 submitted to the Borrower (with a copy to the Administrative Agent) by any  Lender, together with a reasonably detailed calculation and description of such amounts, shall be  rebuttably presumptive evidence as to such amounts.  The obligations of the Borrower pursuant  to this Section 3.3 shall survive the termination of this Agreement and the payment of the Loans  and all other amounts payable hereunder.                                            54  





 






         Section 3.4. Change of Lending Office.  Each Lender agrees that, upon the occurrence of  any event giving rise to the operation of Section 3.1 or 3.2(a) hereof with respect to such Lender,  it  will,  if  requested  by  the  Borrower,  use  reasonable  efforts  (subject  to  overall  policy  considerations of such Lender) to designate another lending office (or an affiliate of such Lender,  if practical for such Lender) for any Loans affected by such event with the object of avoiding the  consequences of such event; provided, that such designation is made on terms that, in the sole  judgment  of  such  Lender,  cause  such  Lender  and  its  lending  office(s)  to  suffer  no  economic,  legal  or  regulatory  disadvantage;  and  provided,  further,  that  nothing  in  this  Section  3.4  shall  affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to  Section 3.1 or 3.2(a) hereof.          Section 3.5.  Eurodollar Rate Lending Unlawful; Inability to Determine Rate.          (a)   If any Lender shall determine (which determination shall, upon notice thereof to  the Borrower and the Administrative Agent, be conclusive and binding on the Borrower) that,  after the Closing Date, (i) the introduction of or any change in or in the interpretation of any law  makes it unlawful, or (ii) any Governmental Authority asserts that it is unlawful, for such Lender  to make or continue  any  Loan  as, or to  convert  (if permitted pursuant to this  Agreement)  any  Loan into, a Eurodollar Loan, the obligations of such Lender to make, continue or convert into  any such Eurodollar Loan shall, upon such determination, be suspended until such Lender shall  notify the Administrative Agent that the circumstances causing such suspension no longer exist,  and  all  outstanding  Eurodollar  Loans  payable  to  such  Lender  shall  automatically  convert  (if  conversion  is  permitted  under  this  Agreement)  into  a  Base  Rate  Loan,  or  be  repaid  (if  no  conversion is permitted) at the end of the then  current  Interest Periods  with respect  thereto or  sooner, if required by law or such assertion.          (b)   If the Administrative Agent or the Required Lenders determine that for any reason  adequate  and  reasonable  means  do  not  exist  for  determining  the  Eurodollar  Rate  for  any  requested Interest Period with respect to a proposed Eurodollar Loan, or that the Eurodollar Rate  for any requested Interest Period with respect to a proposed Eurodollar Loan does not adequately  and fairly reflect the cost to the  Lenders of funding such  Loan, the Administrative Agent will  promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to  make or maintain such Eurodollar Loan shall be suspended until the Administrative Agent (upon  the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the  Borrower may revoke any pending request for a borrowing of, conversion to or continuation of  such  Eurodollar  Loan  or,  failing  that,  will  be  deemed  to  have  converted  such  request  into  a  request for a borrowing of a Base Rate Loan in the amount specified therein.          (c)   Notwithstanding the foregoing, in the event the Administrative Agent determines  in  good  faith  (which  determination  shall  be  conclusive  absent  manifest  error)  that  (i)  the  circumstances set forth in Section 3.5(b) hereof have arisen and such circumstances are unlikely  to  be  temporary,  (ii)  Thomson  Reuters  or  Bloomberg  (or  any  Person  that  takes  over  the  administration of such rate) discontinues its administration and publication of interest settlement  rates for deposits in Dollars, or (iii) the supervisor for the administrator of the interest settlement  rate described in Section 3.5(b) hereof or a Governmental Authority having jurisdiction over the  Administrative Agent has made a public statement identifying a specific date after which such                                          55  





 






   interest settlement rate shall no longer be used for determining interest rates for loans, then the  Administrative  Agent  and  the  Borrower  shall  seek  to  jointly  agree  upon  an  alternate  rate  of  interest  to  the  Eurodollar  Rate  that  gives  due  consideration  to  the  then-prevailing  market  convention for determining  a  rate of interest  for  syndicated loans in the  United States at  such  time,  and  the  Administrative  Agent  and  the  Borrower  shall  enter  into  an  amendment  to  this  Agreement  to  reflect  such  alternate  rate  of  interest  and  such  other  related  changes  to  this  Agreement  as  may  be  applicable.   Notwithstanding  anything  to  the  contrary  in  Section  11.3  hereof,  such  amendment  shall  become  effective  without  any  further  action  or  consent  of  any  other party to this Agreement so long as the Administrative Agent shall not have received, within  five  (5)  Business  Days  of  the  date  notice  of  such  alternate  rate  of  interest  is  provided  to  the  Lenders, a written notice from the Required Lenders stating that such Required Lenders object to  such amendment.  Until an alternate rate of interest shall be determined in accordance with this  Section  3.5(c),  (y)  any  request  pursuant  to  this  Agreement  that  requests  the  conversion  to,  or  continuation of, any Eurodollar Loan shall be ineffective and any such Eurodollar Loan shall be  continued as or converted to, as the case may be, a Base Rate  Loan, and (z) if any request  is  made for a Eurodollar Loan, such Loan shall be made as a Base Rate Loan.  If the alternate rate  of interest determined pursuant to this Section 3.5(c) shall be less than zero, such rate shall be  deemed to be zero for the purposes of this Agreement.          Section 3.6.  Replacement of Lenders.  The Borrower shall be permitted to replace any  Lender that requests reimbursement for amounts owing pursuant to Section 3.1 or 3.2(a) hereof,  or asserts its inability to make a Eurodollar Loan pursuant to Section 3.5 hereof; provided that (a)  such  replacement  does  not  conflict  with  any  Requirement  of  Law,  (b)  no  Default  or  Event  of  Default shall have occurred and be continuing at the time of such replacement, (c) prior to any  such  replacement,  such  Lender  shall  have  taken  no  action  under  Section  3.4  hereof  so  as  to  eliminate the continued  need for payment of amounts owing pursuant to Section 3.1 or 3.2(a)  hereof  or,  if  it  has  taken  any  action,  such  request  has  still  been  made,  (d)  the  replacement  financial institution shall purchase, at par, all Loans and other amounts owing to such replaced  Lender on or prior to the date of replacement  and assume all commitments and obligations of  such replaced Lender, (e) the Borrower shall be liable to such replaced Lender under Section 3.3  hereof if any Eurodollar Loan owing to such replaced Lender shall be purchased other than on  the last day of the  Interest Period relating thereto, (f) the replacement  Lender, if not already a  Lender,  shall  be  satisfactory  to  the  Administrative  Agent,  (g)  the  replaced  Lender  shall  be  obligated to make such replacement in accordance with the provisions of Section 11.10 hereof  (provided  that  the  Borrower  (or  the  succeeding  Lender,  if  such  Lender  is  willing)  shall  be  obligated  to  pay  the  assignment  fee  referred  to  therein),  and  (h)  until  such  time  as  such  replacement  shall  be  consummated,  the  Borrower  shall  pay  all  additional  amounts  (if  any)  required pursuant to Section 3.1 or 3.2(a) hereof, as the case may be; provided that a Lender shall  not be required to make any such  assignment if, prior thereto, as  a result of a waiver by such  Lender or otherwise, the circumstances entitling  the Borrower to replace such Lender cease to  apply.          Section  3.7.   Discretion  of  Lenders  as  to  Manner  of  Funding.   Notwithstanding  any  provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain  its funding of all or any part of such Lender’s  Loans in any manner such Lender deems to be  appropriate;  it  being  understood,  however,  that  for  the  purposes  of  this  Agreement  all                                          56  





 






   determinations hereunder shall be made as if such Lender had actually funded and maintained  each Eurodollar Loan during the applicable Interest Period for such Loan through the purchase of  deposits  having  a  maturity  corresponding  to  such  Interest  Period  and  bearing  an  interest  rate  equal to the Eurodollar Rate for such Interest Period.                          ARTICLE IV.  CONDITIONS PRECEDENT          Section 4.1.  Conditions to Each Credit Event.  The obligation of the Lenders, the Issuing  Lender and the Swing Line Lender to participate in any Credit Event shall be conditioned, in the  case of each Credit Event, upon the following:          (a)   all  conditions  precedent  as  listed  in  Section  4.3  hereof  required  to  be  satisfied  prior to the first Credit Event after the Restatement Date shall have been satisfied prior to or as of  such Credit Event;          (b)   the Borrower shall have submitted a Notice of Loan (or with respect to a Letter of  Credit, complied with the provisions of Section 2.2(b)(ii) hereof) and otherwise complied with  Section 2.6 hereof;          (c)   no Default or Event of Default shall then exist or immediately after such Credit  Event would exist; and          (d)   each of the representations and warranties contained in Article VI hereof shall be  true in all material respects as if made on and as of the date of such Credit Event, except to the  extent that any thereof expressly relate to an earlier date.    Each  request  by  the  Borrower  for  a  Credit  Event  shall  be  deemed  to  be  a  representation  and  warranty by the Borrower as of the date of such request as to the satisfaction of the conditions  precedent specified in subsections (c) and (d) above.          Section 4.2.  Deliveries Made in Connection with the Original Credit Agreement.  The  Borrower  delivered  the  following  documentation  in  connection  with  the  Original  Credit  Agreement:          (a)   Guaranties  of  Payment.   Each  Guarantor of  Payment  executed  and  delivered  to  the Administrative Agent a Guaranty of Payment.          (b)   Security Agreements.  Each Guarantor of Payment executed and delivered to the  Administrative Agent a Security Agreement and such other documents or instruments as required  by the Administrative Agent to create or perfect the  Liens of the  Administrative Agent in the  assets of such Guarantor of Payment.          (c)   Pledge  Agreements.   The  Borrower  and  each  other  Credit  Party  that  has  a  Subsidiary executed and delivered to the Administrative Agent, for the benefit of the Lenders, a  Pledge Agreement with respect to the Pledged Securities.                                          57  





 






           (d)   Intellectual Property Security Agreements.  Each Credit Party that owns federally  registered  intellectual  property  executed  and  delivered  to  the  Administrative  Agent,  for  the  benefit of the Lenders, an Intellectual Property Security Agreement.          (e)   Lien  Searches.   With  respect  to  the  property  owned  or  leased  by  each  Credit  Party,  and  any  other  property  securing  the  Obligations,  the  Borrower  delivered  to  the  Administrative  Agent  (i)  the  results  of  Uniform  Commercial  Code  lien  searches,  reasonably  satisfactory to the Administrative Agent and the Lenders, (ii) the results of federal and state tax  lien  and  judicial  lien  searches,  reasonably  satisfactory  to  the  Administrative  Agent  and  the  Lenders, and (iii) Uniform Commercial Code termination statements reflecting termination of all  U.C.C.  Financing  Statements  previously  filed  by  any  Person  and  not  expressly  permitted  pursuant to Section 5.9 hereof.          (f)   Officer’s  Certificate,  Resolutions,  Organizational  Documents.   The  Borrower  delivered to the Administrative Agent an officer’s certificate (or comparable domestic or foreign  documents) certifying the names of the officers of each Credit Party authorized to sign the Loan  Documents,  together  with  the  true  signatures  of  such  officers  and  certified  copies  of  (i)  the  resolutions  of  the  board  of  directors  (or  comparable  domestic  or  foreign  documents)  of  such  Credit  Party  evidencing  approval  of  the  execution,  delivery  and  performance  of  the  Loan  Documents and the execution and performance of other Related Writings to which such Credit  Party  is  a  party,  and  the  consummation  of  the  transactions  contemplated  thereby,  and  (ii)  the  Organizational Documents of such Credit Party.          (g)   Good Standing and Full Force and Effect Certificates.  The Borrower delivered to  the  Administrative  Agent  a  good  standing  certificate  or  full  force  and  effect  certificate  (or  comparable document, if neither certificate is available in the applicable jurisdiction), as the case  may be, for each Credit Party, issued on or about the Closing Date by the Secretary of State (or  by  a  comparable  official,  if  such  certificates  are  not  issued  by  the  Secretary  of  State  in  the  applicable jurisdiction) in the state or states where such Credit Party is incorporated or formed.          (h)   Legal Opinion.  The Borrower delivered to the Administrative Agent an opinion  of counsel for the Borrower and each other Credit Party.          (i)  Financial  Reports.   The  Borrower  delivered  to  the  Administrative  Agent  (i)  internally  prepared  financial  statements  of  the  Borrower  for  the  fiscal  quarter  ended  June  30,  2016, and (ii) audited financial statements of the Borrower for the fiscal years ended December  31, 2015, December 31, 2014 and December 31, 2013; in each case, prepared on a Consolidated  basis, and (iii) all management letters and reports prepared by independent public accountants for  the fiscal years ended December 31, 2015, December 31, 2014 and December 31, 2013.          (j)  Pro-Forma  Projections.   The  Borrower  delivered  to  the  Administrative  Agent  annual pro-forma projections of financial statements (which report shall include balance sheets  and  statements  of  income  (loss)  and  cash-flow)  of  the  Borrower  for  the  fiscal  year  ending  December 31, 2016, prepared on a Consolidated basis.                                            58  





 






         (k)   Quality of Earnings Report.  The Borrower delivered to the Administrative Agent  a copy of a quality of earnings report.          (l)  Advertising  Permission  Letter.   The  Borrower  delivered  to  the  Administrative  Agent  an  advertising  permission  letter,  authorizing  the  Administrative  Agent  to  publicize  the  transaction  and  specifically  to  use  the  name  of  the  Borrower  in  connection  with  “tombstone”  advertisements in one or more publications selected by the Administrative Agent.           (m)  Closing Certificate.  The Borrower delivered to the Administrative Agent and the  Lenders an officer’s certificate certifying that, as of the Closing Date, (i) all conditions precedent  set forth in Sections 4.1 and 4.2 have been satisfied, (ii) no Default or Event of Default exists or  immediately  after  the  first  Credit  Event  will  exist,  and  (iii)  each  of  the  representations  and  warranties contained in Article VI hereof are true and correct as of the Closing Date.          (n)   Pledged  Securities.   The  Borrower  and  each  other  Credit  Party  that  has  a  Subsidiary (i) executed and delivered to the Administrative Agent, for the benefit of the Lenders,  appropriate  transfer  powers  for  each  of  the  Pledged  Securities  that  are  certificated,  and  (ii)  delivered to the Administrative Agent, for the benefit of the Lenders, the Pledged Securities (to  the extent such Pledged Securities are certificated).          (o)   Solvency  Certificate.   The  Borrower  delivered  to  the  Administrative  Agent  a  solvency certificate, certifying that the Borrower was Solvent as of the first Credit Event after the  Closing Date, taking into account the fair value of its assets and any rights of contribution.          (p)   Control  Agreements.   The  Borrower  delivered  to  the  Administrative  Agent  an  executed Control Agreement for each Deposit Account and each Securities Account maintained  by  a  Credit  Party  (other  than  (i)  Excluded  Accounts,  (ii)  Deposit  Accounts  and  Securities  Accounts where the Administrative Agent or any other Lender is depository bank or securities  intermediary, or (iii) to the extent such Credit Party would not be required to deliver a Control  Agreement for such Deposit Account pursuant to Section 5.21(c) hereof).           (q)   Landlords’  Waivers.   The  Borrower  delivered  a  Landlord’s  Waiver  for  each  location  of  a  Credit  Party  where  any  of  the  collateral  securing  any  part  of  the  Obligations  is  located, unless such location is owned by the Company that owns the collateral located there;  provided  that  the  Borrowers  were  not  required  to  deliver  a  Landlord’s  Waiver  if  such  Credit  Party would not be required to deliver a Landlord’s Waiver pursuant to Section 5.21(d) hereof.          Section  4.3.   Conditions  to  Restatement.   The  Borrower  shall  cause  the  following  conditions to be satisfied on or prior to the Restatement Date:            (a)   Notes as Requested.  The Borrower shall have executed and delivered to (i) each  Revolving  Lender  requesting  a  Revolving  Credit  Note  such  Revolving  Lender’s  Revolving  Credit Note, and (ii) the Swing Line Lender the Swing Line Note, if requested by the Swing Line  Lender.                                            59  





 






         (b)   Confirmation of Loan Documents.  Each Credit Party that executed and delivered  a  Loan Document  in  connection with the Original Credit Agreement, shall have executed and  delivered  to  the  Administrative  Agent  a  confirmation  agreement  with  respect  to  such  Loan  Document, in form and substance satisfactory to the Administrative Agent.           (c)   Officer’s  Certificate,  Resolutions,  Organizational  Documents.   The  Borrower  shall have delivered to the Administrative Agent an officer’s certificate (or comparable domestic  or foreign documents) certifying the names of the officers of each Credit Party authorized to sign  the Loan Documents, together with the true signatures of such officers and certified copies of (i)  the resolutions of the board of directors (or comparable domestic or foreign documents) of such  Credit  Party  evidencing  approval  of  the  execution,  delivery  and  performance  of  the  Loan  Documents and the execution and performance of other Related Writings to which such Credit  Party  is  a  party,  and  the  consummation  of  the  transactions  contemplated  thereby,  and  (ii)  the  Organizational Documents of such Credit Party.          (d)   Closing  Officer’s  Certificate.   The  Borrower  shall  have  delivered  to  the  Administrative  Agent  and  the  Lenders  an  officer’s  certificate  certifying  that,  as  of  the  Restatement Date, (i) all conditions precedent set forth in Section 4.3 have been satisfied, (ii) no  Default or Event of Default exists, and (iii) each of the representations and warranties contained  in Article VI hereof are true and correct as of the Restatement Date.          (e)  Fees  and  Expenses.   The  Borrower  shall  have  (i)  paid  to  the  Administrative  Agent, any fees required to be paid to the Administrative Agent pursuant to the Administrative  Agent Fee Letter, and (ii) paid all reasonable expenses of the Administrative Agent (including  properly  documented  legal  fees)  in  connection  with  this  Agreement  and  the  other  Loan  Documents.                   (f)   No  Material  Adverse  Change.   No  material  adverse  change,  in  the  reasonable  opinion of the Administrative Agent, shall have occurred in the financial condition, operations or  prospects of the Companies, taken as a whole, since December 31, 2017.          (g)   Miscellaneous.   The  Borrower  shall  have  provided  to  the  Administrative  Agent  and  the  Lenders  such  other  items  and  shall  have  satisfied  such  other  conditions  as  may  be  reasonably required by the Administrative Agent or the Lenders.           Section 4.4.  Post-Closing Conditions.  On or before each of the dates specified in this  Section  4.4  (unless  a  longer  period  is  agreed  to  in  writing  by  the  Administrative  Agent),  the  Borrower shall satisfy each of the following items specified in the subsections below:          (a)  Legal  Opinion.   No  later  than  thirty  (30)  days  after  the  Restatement  Date,  the  Borrower  shall  have  delivered  to  the  Administrative  Agent  an  opinion  of  counsel  for  the  Borrower  and  each  other  Credit  Party,  in  form  and  substance  reasonably  satisfactory  to  the  Administrative Agent and the Lenders.                                 ARTICLE V.  COVENANTS                                          60  





 






                                                  Section  5.1.   Insurance.   Each  Company  shall  at  all  times  maintain  insurance  upon  its  Inventory, Equipment  and other personal and real property (including, if  applicable, insurance  required  by  the National  Flood  Insurance Reform  Act  of  1994)  in  such  form,  written  by  such  companies,  in  such  amounts,  for  such  periods,  and  against  such  risks  as  is  customarily  maintained  by  comparable  companies  engaged  in  the  same  or  similar  lines  of  business,  with  provisions reasonably satisfactory to the Administrative Agent for, with respect to Credit Parties,  payment of all losses thereunder to the Administrative Agent, for the benefit of the Lenders, and  such Company as their interests may appear (with lender’s loss payable and additional insured  endorsements,  as  appropriate,  in  favor  of  the  Administrative  Agent,  for  the  benefit  of  the  Lenders), and, if required by the Administrative Agent, the Borrower shall furnish copies of the  policies to the Administrative Agent.  Any such policies of insurance shall provide for no fewer  than  thirty  (30)  days  prior  written  notice  of  cancellation  to  the  Administrative  Agent  and  the  Lenders.   Any  sums  received  by  the  Administrative  Agent,  for  the  benefit  of  the  Lenders,  in  payment of insurance losses, returns, or unearned premiums under the policies shall be applied as  set forth in Section 2.12(b) and (c) hereof.  The Administrative Agent is hereby authorized to act  as  attorney-in-fact  for  the  Companies,  after  the  occurrence  and  during  the  continuance  of  an  Event of Default, in obtaining, adjusting, settling and canceling such insurance and indorsing any  drafts.  In the event of failure to provide such insurance as herein provided, the Administrative  Agent  may,  at  its  option,  provide  such  insurance  and  the  Borrower  shall  pay  to  the  Administrative Agent, upon demand, the cost thereof.  Should the Borrower fail to pay such sum  to the Administrative Agent upon demand, interest shall accrue thereon, from the date of demand  until paid in full, at the Default Rate.  Within ten (10) days of the Administrative Agent’s written  request,  the  Borrower  shall  furnish  to  the  Administrative  Agent  such  information  about  the  insurance  of  the  Companies  as  the  Administrative  Agent  may  from  time  to  time  reasonably  request,  which  information  shall  be  prepared  in  form  and  detail  reasonably  satisfactory  to  the  Administrative Agent and certified by a Financial Officer.          Section 5.2.  Money Obligations.  Each Company shall pay in full (a) prior in each case  to  the  date  when  penalties  would  attach,  all  material  taxes,  assessments  and  governmental  charges and levies (except only those so long as and to the extent that the same shall be contested  in  good  faith  by  appropriate  and  timely  proceedings  and  for  which  adequate  provisions  have  been established in accordance with GAAP) for which it may be or become liable or to which  any or all of its properties may be or become subject; (b) all of its material wage obligations to  its employees in compliance with the Fair Labor Standards Act (29 U.S.C. §§ 206-207) or any  comparable provisions (except for non-compliance being contested in good faith by appropriate  and timely proceedings); and (c) all of its other material obligations calling for the payment of  money (except only those so long as and to the extent that nonpayment of the same would not  cause a Material Adverse Effect) before such payment becomes overdue.          Section 5.3.  Financial Statements and Information.          (a)   Quarterly Financials.  The Borrower shall deliver to the Administrative Agent and  the Lenders, within forty-five (45) days after the end of the first three quarterly periods of each  fiscal year of the Borrower (or, if earlier, within five days after the date on which the Borrower  shall be required to submit its Form 10-Q), balance sheets of the Companies as of the end of such                                          61  





 






   period and statements of income (loss), stockholders’ equity and cash flow for the quarter and  fiscal year to date periods, all prepared on a Consolidated basis, in form and detail satisfactory to  the  Administrative  Agent  and  the  Lenders  and  certified  by  a  Financial  Officer;  provided  that  delivery  of  a  Form  10-Q  filed  by  the  Borrower  with  the  SEC  that  includes  the  financial  statements required hereunder shall be deemed to satisfy the requirements of this subsection (a).          (b)   Annual  Audit  Report.   The  Borrower  shall  deliver  to  the  Administrative  Agent  and the Lenders, within one hundred twenty (120) days after the end of each fiscal year of the  Borrower (or, if earlier, within five days after the date on which the Borrower shall be required  to submit its Form 10-K), an annual audit report of the Companies for that year prepared on a  Consolidated basis, in form and detail reasonably satisfactory to the Administrative Agent and  the  Lenders  and  certified  by  an  unqualified  opinion  of  an  independent  public  accountant  reasonably  satisfactory  to  the  Administrative  Agent,  which  report  shall  include  balance  sheets  and statements of income (loss), stockholders’ equity and cash-flow for that period; provided that  delivery  of  a  Form  10-K  filed  by  the  Borrower  with  the  SEC  that  includes  the  financial  statements required hereunder shall be deemed to satisfy the requirements of this subsection (b).          (c)   Compliance Certificate.  The Borrower shall deliver a Compliance Certificate to  the Administrative Agent and the Lenders, concurrently with the delivery (or deemed delivery)  of the financial statements set forth in subsections (a) and (b) above.          (d)   Management  Reports.   The  Borrower  shall  deliver  to  the  Administrative  Agent  and the Lenders, concurrently with the delivery of the quarterly and annual financial statements  set  forth  in  subsections  (a)  and  (b)  above,  a  copy  of  any  management  report,  letter  or  similar  writing  furnished  to  the  Companies  by  the  accountants  in  respect  of  the  systems,  operations,  financial condition or properties of the Companies.          (e)   Pro-Forma Projections.  The Borrower shall deliver to the Administrative Agent  and the Lenders, within sixty (60) days after the end of each fiscal year of the Borrower, annual  pro-forma projections of the Companies for the then current fiscal year, to be in form and detail  reasonably satisfactory to the Administrative Agent.          (f)   Financial  Information  of  the  Companies.   The  Borrower  shall  deliver  to  the  Administrative Agent and the Lenders, promptly upon the written request of the Administrative  Agent  or  any  Lender,  such  other  information  about  the  financial  condition,  properties  and  operations of any Company as the Administrative Agent or such Lender may from time to time  reasonably  request,  which  information  shall  be  submitted  in  form  and  detail  reasonably  satisfactory to the Administrative Agent or such Lender and certified by a Financial Officer of  the Company or Companies in question.          Section  5.4.   Financial  Records.   Each  Company  shall  at  all  times  maintain  true  and  complete, in all material respects, records and books of account, including, without limiting the  generality  of  the  foregoing,  appropriate  provisions  for  possible  losses  and  liabilities,  all  in  accordance  with  GAAP,  and  at  all  reasonable  times  (during  normal  business  hours  and  upon  reasonable  notice  to  such  Company)  permit  the  Administrative  Agent  or  any  Lender,  or  any                                          62  





 






   representative of the Administrative Agent or such Lender, to examine such Company’s books  and records and to make excerpts therefrom and transcripts thereof.          Section 5.5.  Franchises; Change in Business.            (a)   Each Company (other than a Dormant Subsidiary) shall preserve and maintain at  all times its existence, and its material rights and franchises necessary for its business, except as  otherwise permitted pursuant to Section 5.12 hereof.          (b)   No  Company  shall  engage  in  any  business  if,  as  a  result  thereof,  the  general  nature of the businesses of the Companies taken as a whole would be substantially changed from  the general nature of the businesses the Companies are engaged in on the Closing Date, together  with businesses reasonably similar or related thereto.          Section 5.6.  ERISA Pension and Benefit Plan Compliance.  No Company shall incur any  material accumulated funding deficiency within the meaning of ERISA, or any material liability  to the PBGC, established thereunder in connection with any ERISA Plan.  The Borrower shall  furnish  to  the  Administrative Agent  and  the  Lenders  (a) as  soon  as  possible and  in  any  event  within  thirty  (30)  days  after  any  Company  knows  or  has  reason  to  know  that  any  material  Reportable  Event  with  respect  to  any  ERISA  Plan  has  occurred,  a  statement  of  a  Financial  Officer of such Company, setting forth details as to such Reportable Event and the action that  such Company proposes to take with respect thereto, together with a copy of the notice of such  Reportable Event given to the PBGC if a copy of such notice is available to such Company, and  (b) promptly after receipt thereof, a copy of any material notice such Company, or any member  of  the  Controlled  Group  may  receive  from  the  PBGC  or  the  Internal  Revenue  Service  with  respect to any ERISA Plan administered by such Company; provided that this latter clause shall  not apply to notices  of general application promulgated by the PBGC or the  Internal Revenue  Service or to letters or notices with respect to an ERISA Plan, which do not threaten a material  liability of any Company. The Borrower shall promptly notify the Administrative Agent of any  material taxes assessed, proposed to be assessed or that the Borrower has reason to believe may  be assessed against a Company by the Internal Revenue Service with respect to any ERISA Plan.   As used in this Section 5.6 and in Section 6.11 hereof, “material” means the measure of a matter  of  significance  that  shall  be  determined  as  being  an  amount  equal  to  five  percent  (5%)  of  Consolidated Net Worth.  As soon as practicable, and in any event within twenty (20) days, after  any  Company  shall  become  aware  that  an  ERISA  Event  shall  have  occurred,  such  Company  shall provide the Administrative Agent with notice of such ERISA Event with a certificate by a  Financial  Officer  of  such  Company  setting  forth  the  details  of  the  event  and  the  action  such  Company  or  another  Controlled  Group  member  proposes  to  take  with  respect  thereto.   The  Borrower shall, at the reasonable request of the Administrative Agent or any Lender, deliver or  cause to be delivered to the Administrative Agent or such Lender, as the case may be, true and  correct copies of any documents relating to the ERISA Plan, excluding any documents providing  information  regarding  individual  participants  or  the  disclosure  of  which  would  reasonably  be  expected to violate applicable law.          Section 5.7.  Financial Covenants.                                             63  





 






         (a)   Minimum  Liquidity  Amount.   The  Borrower  shall  not  suffer  or  permit,  at  any  time on  and  after  the  Restatement  Date,  the  Liquidity  Amount  to  be less  than  Fifteen  Million  Dollars ($15,000,000).          (b)   Minimum CPaaS Revenue.  The Borrower shall not suffer or permit, for the most  recently  completed  fiscal  quarter  of  the  Borrower  on  and  after  the  Restatement  Date,  the  aggregate total of CPaaS Revenue during such fiscal quarter to be less than Consolidated Funded  Indebtedness as of the last day of such fiscal quarter.          Section  5.8.   Borrowing.   No  Company  shall  create,  incur  or  have  outstanding  any  Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:          (a)   the Loans, the Letters of Credit and any other Indebtedness under this Agreement;           (b)   any  loans  granted  to,  or  Capitalized  Lease  Obligations  entered  into  by,  any  Company for the purchase or lease of fixed assets (and refinancings of such loans or Capitalized  Lease Obligations), which loans and Capitalized Lease Obligations shall only be secured by the  fixed  assets  being  purchased  or  leased,  so  long  as  the  aggregate  principal  amount  of  all  such  loans and Capitalized  Lease Obligations for  all  Companies shall  not exceed One Million Five  Hundred Thousand Dollars ($1,500,000) at any time outstanding;          (c)   the  Indebtedness  existing  on  the  Closing  Date,  in  addition  to  the  other  Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8  hereto (and any extension, renewal or refinancing thereof but only to the extent that the principal  amount thereof does not increase after the Closing Date);          (d)   loans to, and guaranties of Indebtedness of, a Company from a Company so long  as each such Company is a Credit Party;          (e)   loans to, and guaranties of Indebtedness of, a Company that is not a Credit Party  from a Credit Party so long as such loans and guaranties are permitted under Section 5.11 hereof;          (f)   Indebtedness  under  any  Hedge  Agreement,  so  long  as  such  Hedge  Agreement  shall have been entered into in the ordinary course of business and not for speculative purposes;          (g)   unsecured Indebtedness resulting from the financing of insurance premiums (with  the  insurance  company  providing  such  financing)  in  the  ordinary  course  of  business  and  consistent with past business practices of such Company;          (h)   other unsecured Indebtedness, in addition to the Indebtedness listed above, in an  aggregate principal amount for all Companies not to exceed One Million Dollars ($1,000,000) at  any time outstanding; and          (i)  guarantees  by  any  Company  of  any  of  the  Indebtedness  permitted  under  (a)  through (i) above.                                            64  





 






         Section  5.9.   Liens.   No  Company  shall  create,  assume  or  suffer  to  exist  (upon  the  happening of a contingency or otherwise) any Lien upon any of its property or assets, whether  now owned or hereafter acquired; provided that this Section 5.9 shall not apply to the following:          (a)   Liens for taxes not yet due or that are being actively contested in good faith by  appropriate  proceedings  and  for  which  adequate  reserves  shall  have  been  established  in  accordance with GAAP;          (b)   other statutory Liens, including, without limitation, statutory Liens of landlords,  carriers, warehousemen, utilities, mechanics, repairmen, workers and materialmen, incidental to  the conduct of its business or the ownership of its property and assets that (i) were not incurred in  connection with the incurring of Indebtedness or the obtaining of advances or credit, and (ii) do  not  in  the  aggregate  materially  detract  from  the  value  of  its  property  or  assets  or  materially  impair the use thereof in the operation of its business;          (c)   any Lien granted to the Administrative Agent, for the benefit of the Lenders (and  affiliates thereof);          (d)   the  Liens  existing  on  the  Closing  Date  as  set  forth  in  Schedule  5.9  hereto  and  replacements, extensions, renewals, refundings or refinancings thereof, but only to the extent that  the amount of debt secured thereby, and the amount and description of the property subject to  such Liens, shall not be increased;          (e)   Liens on deposits and purchase money  Liens on  fixed assets securing the loans  and Capitalized Lease Obligations pursuant to Section 5.8(b) hereof, provided that such Lien is  limited to the purchase price and only attaches to the property being acquired and deposits made  in connection with such purchases;          (f)   easements  or  other  minor  defects  or  irregularities  in  title  of  real  property  not  interfering in any material respect with the use of such property in the business of any Company;          (g)   any interest or title of, or Liens created by, a lessor under any leases or subleases  entered into by any Company, as tenant, in the ordinary course of business;          (h)   Liens arising solely by virtue of any statutory or common law provision relating  to banker’s liens, rights of set-off or similar rights, including Liens of a collecting bank arising in  the ordinary course of business under Section 4-208 of the U.C.C.;          (i)  Liens  solely  on  earnest  money  deposits  made  by  the  Borrower  or  any  of  its  Subsidiaries in connection with any letter of intent or purchase agreement executed in connection  with a transaction permitted by this Agreement;          (j)  Liens  arising  from  precautionary  U.C.C.  Financing  Statement  filings  regarding  operating leases entered into by the Borrower or any of its Subsidiaries in the ordinary course of  business;                                            65  





 






         (k)   Liens securing the financing of insurance premiums (with the insurance company  providing such financing) in the ordinary course of business and consistent with past business  practices of such Company;          (l)  pledges,  deposits  and  other  Liens  securing  liability  for  reimbursement  or  indemnification  obligations  of  (including  obligations  in  respect  of  letters  of  credit  or  bank  guarantees  for  the  benefit  of)  insurance  carriers  providing  property,  casualty,  workmen’s  compensation or liability insurance in an aggregate principal amount not to exceed Two Million  Five Hundred Thousand Dollars ($2,500,000);          (m)  an  agreement  to  transfer  any  property  in  a  disposition  permitted  under  Section 5.12 hereof, to the extent that such an agreement  may constitute a Lien, and  Liens on  earnest money deposits of cash or Cash Equivalents made by the Companies in connection with  any Disposition permitted under Section 5.12 hereof;          (n)   any  encumbrance  or  restriction  with  respect  to  the  equity  interests  of  any  joint  venture or similar arrangement created after the Closing Date and pursuant to the joint venture or  similar  agreements  with  respect  to  such  joint  venture  or similar  arrangements  permitted  under  this Agreement;          (o)   Liens  arising  from  judgments,  decrees  or  attachments  in  circumstances  not  constituting an Event of Default under Section 8.8 hereof; or          (p)   other Liens, in addition to the Liens listed above, not incurred in connection with  the  incurring  of  Indebtedness,  securing  amounts,  in  the  aggregate  for  all  Companies,  not  to  exceed Fifty Thousand Dollars ($50,000) at any time.    No Company shall enter into any contract or agreement (other than (i) a contract or agreement  entered into in connection with the purchase or lease of fixed assets that prohibits Liens on such  fixed  assets,  (ii) customary  provisions  in  joint  venture  agreements  restricting  liens  on  joint  venture  assets  (to  the  extent  joint  ventures  are  permitted  by  this  Agreement),  (iii) customary  provisions in licenses of intellectual property that restrict the creation of liens entered into in the  ordinary course of business, (iv) customary provisions restricting subletting or assignment of any  lease  governing  a  leasehold  interest  entered  into  in  the  ordinary  course  of  business,  and  (v) customary restrictions and conditions contained in any agreement relating to the sale of any  asset  permitted  under  Section 5.12  hereof  pending  the  consummation  of  such  sale) that  would  prohibit the Administrative Agent or the Lenders from acquiring a security interest, mortgage or  other Lien on, or a collateral assignment of, any of the property or assets of such Company.          Section 5.10.  Regulations T, U and X.  No Company shall take any action that would  result in any non-compliance of the Loans or Letters of Credit with Regulations T, U or X, or  any other applicable regulation, of the Board of Governors of the Federal Reserve System.          Section 5.11.  Investments, Loans and Guaranties.  No Company shall (a) create, acquire  or hold any Subsidiary, (b) make or hold any investment in any stocks, bonds or securities of any  kind,  (c)  be  or  become  a  party  to  any  joint  venture  or  other  partnership,  (d)  make  or  keep                                          66  





 






   outstanding  any  advance  or  loan  to  any  Person,  or  (e)  be  or  become a  Guarantor  of  any  kind  (other than a Guarantor of Payment under the Loan Documents); provided that this Section 5.11  shall not apply to the following:                (i)  any  endorsement  of a  check  or other  medium  of  payment  for deposit  or        collection through normal banking channels or similar transaction in the normal course of        business;                      (ii)   investments in Cash Equivalents;                      (iii)   Permitted Investments;                      (iv)  the holding of each of the Subsidiaries listed on Schedule 6.1 hereto, and        the creation, acquisition and holding of and any investment in any new Subsidiary after        the  Closing  Date  so  long  as  such  new  Subsidiary  shall  have  been  created,  acquired  or        held,  and  investments  made,  in  accordance  with  the  terms  and  conditions  of  this        Agreement;                      (v)   loans  to,  investments  in  and  guaranties  of  the  Indebtedness  (permitted        under Section 5.8(d) hereof) of, a Company from or by a Company so long as each such        Company is a Credit Party;                      (vi)  any loans by a Company (that is not a Credit Party) to, investments by a        Company (that is not a Credit Party) in, and guaranties by a Company (that is not a Credit        Party) of Indebtedness of, another Company;                      (vii)  any  advance  or  loan  to  an  officer  or  employee  of  a  Company  as  an        advance  on  commissions,  travel  and  other  items  in  the  ordinary  course  of  business,  so        long as all such advances and loans (other than through use of company credit cards or        similar  purchase  cards)  from  all  Companies  aggregate  not  more  than  the  maximum        principal sum of Five Hundred Thousand Dollars ($500,000) at any time outstanding;                      (viii)  any  loans  by  a  Credit  Party  to,  investments  by  a  Credit  Party  in,  and        guaranties by a Credit Party of Indebtedness of, a Company that is not a Credit Party, so        long as the aggregate amount thereof shall not exceed Five Hundred Thousand Dollars        ($500,000) at any time outstanding;                      (ix)  the holdings of any stock or equity interest that remains following the sale        or  other  disposition  of  a  Company  (or  a  majority  interest  therein)  permitted  by        Section 5.12 hereof;                      (x)  guarantees  that  constitute  Indebtedness  permitted  under  Section 5.8        hereof;                       (xi)  accounts receivable arising and trade credit granted in the ordinary course        of business and securities of account debtors received in satisfaction or partial satisfaction                                          67  





 






         thereof  from  financially  troubled  account  debtors  or  pursuant  to  any  plan  of        reorganization or similar arrangement upon the bankruptcy or insolvency of such account        debtors;                       (xii)  guaranties by a Company of operating leases (other than Capitalized Lease        Obligations)  or  of  other  obligations  that  do  not  constitute  Indebtedness,  in  each  case        entered into by a Company in the ordinary course of business; or                      (xiii)  investments  in  the  nature  of  Acquisitions  to  the  extent  permitted  under        Section 5.13 hereof.          For purposes of this Section 5.11, the amount of any investment in equity interests shall be based  upon the initial amount invested and shall not include any appreciation in value or return on such  investment but shall take into account repayments, redemptions and return of capital.          Section  5.12.   Merger  and  Sale  of  Assets.   No  Company  shall  merge,  amalgamate  or  consolidate with any other Person, or sell, lease or transfer or otherwise dispose of any assets to  any Person other than in the ordinary course of business, except that, if no Default or Event of  Default shall then exist or immediately thereafter shall begin to exist:          (a)   a Company (other than the Borrower) may merge with (i) the Borrower (provided  that the Borrower shall be the continuing or surviving Person) or (ii) any one or more Guarantors  of Payment (provided that at least one Guarantor of Payment shall be the continuing or surviving  Person);          (b)   a  Company  (other  than  the  Borrower)  may  sell,  lease,  transfer  or  otherwise  dispose of any of its assets to (i) the Borrower or (ii) any Guarantor of Payment;          (c)   a Company (other than a Credit Party) may merge with or sell, lease, transfer or  otherwise dispose of any of its assets to any other Company;          (d)   a Company  may  sell,  lease,  transfer  or  otherwise  dispose  of any  assets  that  are  obsolete or no longer useful in such Company’s business;           (e)   Acquisitions may be effected  in accordance with the provisions of Section 5.13  hereof; and          (f)   a  Company  may  terminate  a  lease  of  real  or  personal  property  that  is  not  necessary  for  the  ordinary  course  of  business,  could  not  reasonably  be  expected  to  have  a  Material Adverse Effect and does not result from a Company’s default.          Section  5.13.   Acquisitions.   No  Company  shall  effect  an  Acquisition;  provided  that  a  Company  may  effect  an  Acquisition  so  long  as  such  Acquisition  meets  all  of  the  following  requirements:                                            68  





 






         (a)   in  the  case  of  an  Acquisition  that  involves  a  merger,  amalgamation  or  other  combination including the Borrower, the Borrower shall be the surviving entity;          (b)   in  the  case  of  an  Acquisition  that  involves  a  merger,  amalgamation  or  other  combination  including  a  Credit  Party  (other  than  the  Borrower),  a  Credit  Party  shall  be  the  surviving entity;           (c)   the business to be acquired shall be similar to, or related to, or incidental to the  lines of business of the Companies;           (d)   the Companies shall be in full compliance with the Loan Documents both prior to  and after giving pro forma effect to such Acquisition;           (e)   no Default or Event of Default shall exist prior to or, after giving pro forma effect  to such Acquisition, thereafter shall begin to exist;          (f)   the aggregate Consideration paid or to be payable for all such Acquisitions after  the Restatement Date does not exceed Twenty-Five Million Dollars ($25,000,000); and          (g)   such  Acquisition  is  not  actively  opposed  by  the  board  of  directors  (or  similar  governing body) of the selling Persons or the Persons whose equity interests are to be acquired.          Section 5.14.  Notice.  The Borrower shall cause a Financial Officer to promptly notify  the Administrative Agent and the Lenders, in writing, whenever any of the following shall occur:          (a)   a  Default  or  Event  of  Default  has  occurred  hereunder  or  any  representation  or  warranty made in Article VI hereof or elsewhere in this Agreement or in any Related Writing for  any reason ceases in any material respect to be true and complete;          (b)   the  Borrower learns  of a  litigation  or  proceeding  against  the  Borrower  before  a  court, administrative agency or arbitrator that would reasonably be expected to have a Material  Adverse Effect; or          (c)   the Borrower learns that there has occurred or begun to exist any event, condition  or thing that is reasonably likely to have a Material Adverse Effect.          Section 5.15.  Restricted Payments.  No Company shall make or commit itself to make  any Restricted Payment at any time, except that:          (a)   so  long  as  no  Default  or  Event  of  Default  shall  then  exist  or,  after  giving  pro  forma effect to such payment, thereafter shall begin to exist, the Borrower may pay customary  and reasonable directors’ fees to directors who are not employees of a Company or an Affiliate,  in an aggregate amount not to exceed Five Hundred Thousand Dollars ($500,000) in any fiscal  year; and                                            69  





 






         (b)   the  Borrower  may  make  Capital  Distributions,  in  addition  to  the  Capital  Distributions permitted pursuant to subsection (a) above, in an aggregate amount not to exceed  Five Million Dollars ($5,000,000), so long as (i) no Default or Event of Default shall then exist  or,  after  giving  pro  forma  effect  to  such  payment,  thereafter  shall  begin  to  exist  and  (ii)  the  Borrower shall be in compliance with the financial covenants set forth in Section 5.7 hereof, both  prior to and after giving pro forma effect to such payment.           Section 5.16.  Environmental Compliance.  Each Company shall comply in all material  respects  with  any  and  all  Environmental  Laws  and  Environmental  Permits  including,  without  limitation, all Environmental Laws in jurisdictions in which such Company owns or operates a  facility or site, arranges for disposal or treatment of hazardous substances, solid waste or other  wastes, accepts for transport any hazardous substances, solid waste or other wastes or holds any  interest in real property or otherwise.  The Borrower shall furnish to the Administrative Agent  and the Lenders, promptly after receipt thereof, a copy of any notice any Company may receive  from any Governmental Authority or private Person, or otherwise, that any material litigation or  proceeding  pertaining  to  any  environmental,  health  or  safety  matter  has  been  filed  or  is  threatened against such Company, any real property in which such Company holds any interest  or  any  past  or  present  operation  of  such  Company.   No  Company  shall  allow  the  release  or  disposal  of  hazardous  waste,  solid  waste  or  other  wastes  on,  under  or  to  any  real  property  in  which any Company holds any ownership interest or performs any of its operations, in violation  of  any  material  provision  of  Environmental  Law.   As  used  in  this  Section  5.16,  “litigation  or  proceeding” means any demand, claim, notice, suit, suit in equity action, administrative action,  investigation or inquiry whether brought by any Governmental Authority or private Person, or  otherwise.   The Borrower  shall  defend,  indemnify  and  hold  the  Administrative  Agent  and  the  Lenders  harmless  against  all  properly  documented  costs,  expenses,  claims,  damages,  penalties  and  liabilities  of  every  kind  or  nature  whatsoever  (including  attorneys’  fees)  arising  out  of  or  resulting  from  the  noncompliance  of  any  Company  with  any  Environmental  Law.   Such  indemnification shall survive any termination of this Agreement.          Section 5.17.  Affiliate Transactions.  No Company shall, directly or indirectly, enter into  or  permit  to  exist  any  transaction  or  series  of  transactions  (including,  without  limitation,  the  purchase,  sale,  lease  or  exchange  of  any  property  or  the  rendering  of  any  service)  with  any  Affiliate (other than a Company that is a Credit Party) on terms that shall be less favorable to  such Company than those that might be obtained at the time in a transaction with a Person that is  not an Affiliate; provided that the foregoing shall not prohibit (a) the payment of customary and  reasonable  directors’  fees  to  directors  who  are  not  employees  of  a  Company  or  an  Affiliate;  (b) any  employment  agreement,  employee  benefit  plan,  stock  option  plan,  officer,  director,  consultant  or  employee  indemnification  agreement  (and  the  payment  of  indemnities  and  fees  pursuant  to  such  arrangements) or  any  similar  arrangement  entered  into  by  a  Company  in  the  ordinary course of business; (c) loans to employees or officers to the extent permitted under this  Agreement;  (d)  any transactions (i) less than an aggregate of One Hundred Thousand Dollars  ($100,000)  during  any  calendar  year;  or  (ii)  in  respect  of  which  the  Borrower  delivers  to  the  Administrative Agent (for delivery to the Lenders) a letter addressed to the Board of Directors of  the Borrower from an account, appraisal or investment banking firm, in each case of nationally  recognized  standing  that  is  (A) in  the  good  faith  determination  of  the  Borrower  qualified  to  render  such  letter,  and  (B) reasonably  satisfactory  to  the  Administrative  Agent,  which  letter                                          70  





 






   states  that  such  transaction  is  on  terms  that  are  no  less  favorable  to  the  Borrower  or  such  Subsidiary, as applicable, than would be obtained in a comparable arm’s-length transaction with  a Person that is not an Affiliate; or (e) the transactions contemplated by  any of the Employee  Matters Agreement, the Facilities Sharing Agreement, the Master Services Agreement, the Tax  Sharing  Agreement,  and  the  Transition  Services  Agreements,  each  between  the  Borrower  and  Republic Wireless, Inc. and dated as of November 30, 2016.          Section 5.18.  Use of Proceeds.  The Borrower’s use of the proceeds of the Loans shall be  for working capital and other general corporate purposes of the Companies, for the refinancing  of  existing  Indebtedness,  for  Acquisitions  permitted  hereunder  and  to  fund  certain  Capital  Distributions, and for certain fees and expenses associated with the transactions contemplated by  this Agreement.  The Borrower will not, directly or indirectly, use the proceeds of the Loans, or  lend,  contribute  or  otherwise  make  available  such  proceeds  to  any  subsidiary,  joint  venture  partner  or  other  Person,  (a)  (i)  to  fund  activities  or business  of  or with  any  Person,  or  in  any  country or territory, that, at the time of such funding, is, or whose government is, the subject of  Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any Person  (including  any  Person  participating  in  the  Loans,  whether  as  underwriter,  advisor,  investor,  or  otherwise);  or  (b)  in  furtherance  of an  offer,  payment,  promise  to  pay,  or  authorization  of  the  payment  or  giving  of  money,  or  anything  else  of  value,  to  any  Person  in  violation  of  Anti- Corruption Laws.          Section  5.19.   Corporate  Names  and  Locations  of  Collateral.   No  Company  shall  (a)  change  its  corporate  name,  or  (b)  change  its  state,  province  or  other  jurisdiction,  or  form  of  organization,  or  extend  or  continue  its  existence  in  or  to  any  other  jurisdiction  (other  than  its  jurisdiction  of  organization  at  the date  of  this  Agreement);  unless,  in  each  case,  the  Borrower  shall have provided the Administrative Agent with at least thirty (30) days prior written notice  thereof.  The Borrower shall also provide the Administrative Agent with at least thirty (30) days  prior  written  notification  of  (i)  any  change  in  any  location  where  any  material  amount  of  a  Company’s  Inventory  or  Equipment  is  maintained,  and  any  new  locations  where any  material  amount  of  a  Company’s  Inventory  or  Equipment  is  to  be  maintained;  (ii)  any  change  in  the  location of the office where any Company’s records pertaining to its Accounts are kept; (iii) the  location of any new places of business and the changing or closing of any of its existing places of  business; and (iv) any change in the location of any Company’s chief executive office.  In the  event  of  any  of  the  foregoing  or  if  otherwise  deemed  reasonably  appropriate  by  the  Administrative  Agent,  the  Administrative  Agent  is  hereby  authorized  to  file  new  U.C.C.  Financing Statements describing the Collateral and otherwise in form and substance sufficient  for recordation wherever necessary or appropriate, as determined in the Administrative Agent’s  sole discretion, to perfect or continue perfected the security interest of the Administrative Agent,  for the benefit of the Lenders, in the Collateral.  The Borrower shall pay all filing and recording  fees and taxes in connection with the filing or recordation of such U.C.C. Financing Statements  and  security  interests  and  shall  promptly  reimburse  the  Administrative  Agent  therefor  if  the  Administrative Agent pays the same.  Such amounts not so paid or reimbursed shall be Related  Expenses hereunder.          Section 5.20.  Subsidiary Guaranties, Security Documents and Pledge of Stock or Other  Ownership Interest.                                          71  





 






           (a)   Guaranties and Security Documents.  Each Subsidiary (other than (i) a Subsidiary  that is a Dormant Subsidiary, or (ii) a CFC or a Subsidiary that is held directly or indirectly by a  CFC)  created,  acquired  or  held  subsequent  to  the  Closing  Date,  shall  promptly  execute  and  deliver to the Administrative Agent, for the benefit of the Lenders, a Guaranty of Payment (or a  Guaranty of Payment Joinder) of all of the Obligations and a Security Agreement (or a Security  Agreement Joinder), such agreements to be prepared by the Administrative Agent and in form  and  substance  acceptable  to  the  Administrative  Agent,  along  with  any  such  other  supporting  documentation, Security Documents, corporate governance and authorization documents, and an  opinion of counsel as may reasonably be deemed necessary or advisable by the Administrative  Agent.  With respect to a Subsidiary that has been classified as a Dormant Subsidiary, at such  time  that  such  Subsidiary  no  longer  meets  the  requirements  of  a  Dormant  Subsidiary,  the  Borrower  shall  provide  to  the  Administrative  Agent  prompt  written  notice  thereof,  and  shall  provide,  with  respect  to  such  Subsidiary,  all  of  the  documents  referenced  in  the  foregoing  sentence.          (b)   Pledge  of  Stock  or  Other  Ownership  Interest.   With  respect  to  the  creation  or  acquisition  of  a  Subsidiary  (other  than  any  direct  or  indirect  Subsidiary  of  a  CFC)  after  the  Closing  Date,  the  Borrower  shall  deliver  to  the  Administrative  Agent,  for  the  benefit  of  the  Lenders,  all  of  the  share  certificates  (or  other  evidence  of  equity)  owned  by  a  Credit  Party  pursuant to the terms of a Pledge Agreement prepared by the Administrative Agent and in form  and substance satisfactory to the Administrative Agent, and executed by the appropriate Credit  Party; provided that no such pledge shall include shares of voting capital stock or other voting  equity interests of any Foreign Subsidiary that is a CFC in excess of sixty-five percent (65%) of  the total outstanding shares of voting capital stock or other voting equity interest of such Foreign  Subsidiary, whether held directly or indirectly through a disregarded entity.          (c)   Perfection  or  Registration  of  Interest  in  Foreign  Shares.   With  respect  to  any  foreign shares pledged to the Administrative Agent, for the benefit of the Lenders, on or after the  Closing Date, the Administrative Agent shall at all times, in the discretion of the Administrative  Agent or the Required Lenders, have the right to perfect, at the Borrower’s cost, payable upon  request  therefor  (including,  without  limitation,  any  foreign  counsel,  or  foreign  notary,  filing,  registration  or  similar,  fees,  costs  or  expenses),  its  security  interest  in  such  shares  in  the  respective foreign jurisdiction.  Such perfection may include the requirement that the applicable  Company promptly execute and deliver to the Administrative Agent a separate pledge document  (prepared  by  the  Administrative  Agent  and  in  form  and  substance  satisfactory  to  the  Administrative Agent), covering such equity interests, that conforms to the requirements of the  applicable foreign jurisdiction, together with an opinion of local counsel as to the perfection of  the security interest provided for therein, and all other documentation necessary or desirable to  effect  the  foregoing  and  to  permit  the  Administrative  Agent  to  exercise  any  of  its  rights  and  remedies in respect thereof.  Notwithstanding the foregoing, such perfection shall not be required  if,  in  the reasonable judgment  of  Administrative  Agent  and  the  Borrower,  the burden,  cost  or  consequences  of  creating  or  perfecting  such  pledges  or  security  interests  in  such  assets  is  excessive in relation to the benefits to be obtained therefrom by the Administrative Agent and  Lenders.                                              72  





 






         Section 5.21.  Collateral.  Each Credit Party shall:          (a)   at  all  reasonable  times  and,  except  after the occurrence  of  an  Event  of  Default,  upon reasonable notice, allow the Administrative Agent by or through any of the Administrative  Agent’s officers, agents, employees, attorneys or accountants to (i) examine, inspect and make  extracts from such Credit Party’s books and other records, including, without limitation, the tax  returns of such Credit Party, (ii) arrange for verification of such Credit Party’s Accounts, under  reasonable procedures, directly with Account Debtors or by other methods, and (iii) examine and  inspect such Credit Party’s Inventory and Equipment, wherever located;          (b)   promptly  furnish  to  the  Administrative  Agent  upon  request  (i)  additional  statements  and  information  with  respect  to  the  Collateral,  and  all  writings  and  information  relating  to  or  evidencing  any  of  such  Credit  Party’s  Accounts  (including,  without  limitation,  computer  printouts  or  typewritten  reports  listing  the  mailing  addresses  of  all  present  Account  Debtors),  and  (ii)  any  other  writings  and  information  as  the  Administrative  Agent  may  reasonably request;          (c)   promptly  notify  the  Administrative  Agent  in  writing  of  the  existence  of  any  Deposit  Account  or  Securities  Account  of  any  Credit  Party,  and  promptly  (or  prior  to  or  simultaneously with the creation of any new Deposit Account or Securities Account) provide for  the  execution  of  a  Deposit  Account  Control  Agreement  or  Securities  Account  Control  Agreement with respect thereto, if required by the Administrative Agent; provided that no Credit  Party shall be required to deliver a Deposit Account Control Agreement or Securities Account  Control Agreement (i) with respect to any Excluded Account, or (ii) so long as (A) the aggregate  balance  in  each  Deposit  Account  (that  is  not  an  Excluded  Account)  that  is  not  subject  to  a  Control Agreement does not exceed One Hundred Thousand Dollars ($100,000) at any time, and  (B) the aggregate balance in all Deposit Accounts (that are not Excluded Accounts) that are not  subject to a Control Agreement does not exceed Five Hundred Thousand Dollars ($500,000) at  any time;          (d)   promptly notify the Administrative Agent in writing whenever the Equipment or  Inventory  of  a  Company,  valued  in  excess  of  One  Hundred  Thousand  Dollars  ($100,000),  is  located  at  a  location  of  a  third  party  (other  than  another  Company)  that  is  not  covered  by  an  executed  Landlord’s  Waiver,  Bailee’s  Waiver,  Processor’s  Waiver,  Consignee’s  Waiver  or  similar  document  with  respect  thereto,  and  deliver  to  the  Administrative  Agent  an  executed  Landlord’s  Waiver,  Bailee’s  Waiver,  Processor’s  Waiver,  Consignee’s  Waiver  or  similar  document with respect thereto or notice that may be required by the Administrative Agent;           (e)   promptly notify the Administrative Agent in writing of any information that the  Credit  Parties  have  or  may  receive  with  respect  to  the  Collateral  that  might  reasonably  be  determined to materially and adversely affect the value thereof or the rights of the Administrative  Agent with respect thereto;          (f)   maintain such Credit Party’s Equipment (other than Equipment that is obsolete or  no  longer  useful  in  the  Borrower’s  business) in  good  operating  condition  and  repair,  ordinary  wear  and  tear  excepted,  making  all  necessary  replacements  in  management’s  reasonable                                          73  





 






   judgment  and  in  the  ordinary  course  of  business  thereof  so  that  the  value  and  operating  efficiency thereof shall at all times be maintained and preserved;          (g)   deliver  to  the  Administrative  Agent,  to  hold  as  security  for  the  Secured  Obligations,  all  certificated  Investment  Property  owned  by  a  Credit  Party  and  constituting  Collateral,  in  suitable  form  for  transfer  by  delivery,  or  accompanied  by  duly  executed  instruments  of  transfer  or  assignment  in  blank,  all  in  form  and  substance  satisfactory  to  the  Administrative  Agent,  or  in  the  event  such  Investment  Property  is  in  the  possession  of  a  Securities  Intermediary  or credited to  a Securities Account (other than  an Excluded Account),  execute with the related Securities  Intermediary  a Securities Account Control Agreement over  such Securities Account in favor of the Administrative Agent, for the benefit of the Lenders, in  form and substance satisfactory to the Administrative Agent;          (h)   provide to the Administrative Agent, on a quarterly basis (as necessary), a list of  any patents, trademarks or copyrights that have been federally registered by the Borrower or a  Domestic  Subsidiary  during  such  quarter,  and  provide  for  the  execution  of  an  appropriate  Intellectual Property Security Agreement; and          (i)  upon  request  of  the  Administrative  Agent,  promptly  take  such  action  and  promptly  make,  execute  and  deliver  all  such  additional  and  further  items,  deeds,  assurances,  instruments  and  any  other  writings  as  the  Administrative  Agent  may  from  time  to  time  deem  necessary  or  appropriate,  including,  without  limitation,  chattel  paper,  to  carry  into  effect  the  intention  of  this  Agreement,  or  so  as  to  completely  vest  in  and  ensure  to  the  Administrative  Agent and the Lenders their respective rights hereunder and in or to the Collateral.    Each Credit Party hereby authorizes the Administrative Agent, on behalf of the Lenders, to file  U.C.C.  Financing  Statements  or  other  appropriate  notices  with  respect  to  the  Collateral.   If  certificates of title or applications for title are issued or outstanding with respect to any of the  Inventory or Equipment of any Credit Party constituting Collateral, such Credit Party shall, upon  request of the Administrative Agent, (i) execute and deliver to the Administrative Agent a short  form  security  agreement,  prepared  by  the  Administrative  Agent  and  in  form  and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  and  (ii)  deliver  such  certificate  or  application to the Administrative Agent and cause the interest of the Administrative Agent, for  the benefit of the Lenders, to be properly noted thereon.  Each Credit Party hereby authorizes the  Administrative Agent or the Administrative Agent’s designated agent (but without obligation by  the  Administrative  Agent  to  do  so)  to  incur  Related  Expenses  (whether  prior  to,  upon,  or  subsequent  to  any  Default  or  Event  of  Default),  and  the  Borrower  shall  promptly  repay,  reimburse,  and  indemnify  the  Administrative  Agent  and  the  Lenders  for  any  and  all  Related  Expenses.  If any Credit Party fails to keep and maintain its Equipment (other than Equipment  that  is  obsolete  or  no  longer  useful  in  the  Borrower’s  business)  in  good  operating  condition,  ordinary wear and tear excepted, the Administrative Agent may (but shall not be required to) so  maintain or repair all or any part of such Credit Party’s Equipment and the cost thereof shall be a  Related Expense.  All Related Expenses are payable to the Administrative Agent upon demand  therefor;  the  Administrative  Agent  may,  at  its  option,  debit  Related  Expenses  directly  to  any  Deposit Account of a Company located at the Administrative Agent or the Revolving Loans.                                            74  





 






         Section  5.22.   Property  Acquired  Subsequent  to  the  Closing  Date  and  Right  to  Take  Additional Collateral.  The Borrower shall provide the Administrative Agent with prompt written  notice with respect to any real or personal property (other than in the ordinary course of business  and  excluding  Accounts,  Inventory,  Equipment  and  General  Intangibles  and  other  property  acquired  in  the  ordinary  course  of  business)  acquired  by  any  Company  subsequent  to  the  Closing.  In addition to any other right that the Administrative Agent and the Lenders may have  pursuant  to  this  Agreement  or  otherwise,  upon  written  request  of  the  Administrative  Agent,  whenever made, the Borrower shall, and shall cause each Guarantor of Payment to, grant to the  Administrative  Agent,  for  the  benefit  of  the  Lenders,  as  additional  security  for  the  Secured  Obligations, a first Lien on any real property (with a fair market value in excess of One Million  Dollars  ($1,000,000))  or  personal  property  of  the  Borrower  and  each  Guarantor  of  Payment  (other than for Excluded Property, leased equipment or equipment subject to a purchase money  security interest in which the lessor or purchase money lender of such equipment holds a first  priority security interest, in which case, the Administrative Agent shall have the right to obtain a  security  interest  junior  only  to  such  lessor  or  purchase  money  lender),  including,  without  limitation, such property acquired subsequent to the Closing Date, in which the Administrative  Agent does not have a first priority Lien; provided that, if, at any time, the Companies own real  property that is not subject to a mortgage and that has an aggregate fair market value of greater  than One Million Dollars ($1,000,000), the Borrower shall promptly, upon written request of the  Administrative Agent, cause one or more Companies to grant to the Administrative Agent, for  the  benefit  of  the  Lenders,  a  first  priority  security  interest  in  such  real  property,  so  that  the  aggregate  fair  market  value  of  owned  real  property  of  the  Companies  that  is  not  subject  to  a  mortgage is less than or equal to One Million Dollars ($1,000,000).  The Borrower agrees that,  within  ten  (10)  days  after  the  date  of  such  written  request,  to  secure  all  of  the  Secured  Obligations by delivering to the Administrative Agent security agreements, intellectual property  security  agreements,  pledge  agreements,  mortgages  (or  deeds  of  trust,  if  applicable)  or  other  documents,  instruments  or  agreements  or  such  thereof  as  the  Administrative  Agent  may  reasonably  require  with  respect  to  any  of  the  Credit  Parties.   The  Borrower  shall  pay  all  recordation, legal and other expenses in connection therewith.          Section  5.23.   Restrictive  Agreements.   Except  as  set  forth  in  this  Agreement,  the  Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create or  otherwise  cause  or  suffer  to  exist  or  become  effective  any  encumbrance  or  restriction  on  the  ability  of  any  Subsidiary  to  (a)  make,  directly  or  indirectly,  any  Capital  Distribution  to  the  Borrower,  (b)  make,  directly  or  indirectly,  loans  or  advances  or  capital  contributions  to  the  Borrower or (c) transfer, directly or indirectly, any of the properties or assets of such Subsidiary  to the Borrower; except for such encumbrances or restrictions existing under or by reason of (i)  applicable law, (ii) customary non-assignment provisions in leases or other agreements entered  in the ordinary course of business and consistent with past practices, (iii) customary restrictions  in security agreements or mortgages securing Indebtedness, or capital leases, of a Company to  the extent such restrictions shall only restrict the transfer of the property subject to such security  agreement, mortgage or lease, or (iv) any encumbrance or restriction with respect to the equity  interests of any joint venture or similar arrangement created after the Closing Date and pursuant  to  the  joint  venture  or  similar  agreements  with  respect  to  such  joint  venture  or  similar  arrangements permitted under this Agreement.                                            75  





 






         Section  5.24.   Other  Covenants  and  Provisions.   In  the  event  that  any  Company  shall  enter  into,  or  shall  have  entered  into,  any  Material  Indebtedness  Agreement,  wherein  the  financial covenants contained therein shall  be more restrictive than the financial covenants set  forth herein, then the Companies shall immediately be bound hereunder (without further action)  by such more restrictive financial covenants with the same force and effect as if such financial  covenants were written herein for so long as such Material Indebtedness Agreement remains in  effect.   In  addition  to  the  foregoing,  the  Borrower  shall  provide  prompt  written  notice  to  the  Administrative Agent of the creation or existence of any Material Indebtedness Agreement that  has  such  more  restrictive  financial  covenants,  and  shall,  within  fifteen  (15)  days  thereafter  (if  requested  by  the  Administrative  Agent),  execute  and  deliver  to  the  Administrative  Agent  an  amendment to this Agreement that incorporates such more restrictive financial covenants, with  such amendment to be in form and substance satisfactory to the Administrative Agent.          Section 5.25.  FCC Approval.  Each Company agrees to cooperate with, and take such  action  as  reasonably  requested  by,  the  Administrative  Agent  in  order  to  obtain  from  the  FCC  such  approval  as  may  be  necessary  to  enable  the  Administrative  Agent  and  the  Lenders  to  exercise and enjoy the full rights and benefits granted to them by this Agreement, including the  use of such Company’s commercially reasonable efforts to assist in obtaining the approval of the  FCC for any action or transaction contemplated by this Agreement for which such approval is  required by law.          Section  5.26.   Amendment  of  Organizational  Documents.   Without  the  prior  written  consent of the Administrative Agent, no Company shall (a) amend its Organizational Documents  in any manner adverse to the Lenders, or (b) amend its Organizational Documents to change its  name or state, province or other jurisdiction of organization, or its form of organization.           Section 5.27.  Fiscal Year of the Borrower.  The Borrower shall not change the date of its  fiscal year-end without the prior written consent of the Administrative Agent and the Required  Lenders.  As of the Closing Date, the fiscal year end of the Borrower is December 31 of each  year.          Section  5.28.   Banking  Relationship.   No  later  than  eighteen  (18)  months  after  the  Restatement Date, and until payment in full of the Obligations, the Borrower shall maintain its  primary banking, depository and cash management relationship with the Administrative Agent or  any other Lender.          Section 5.29.  Further Assurances.  The Borrower shall, and shall cause each other Credit  Party to, promptly upon request by the Administrative Agent, or the Required Lenders through  the Administrative Agent, (a) correct any material defect or error that may be discovered in any  Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do,  execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all  such  further  acts,  deeds,  certificates,  assurances  and  other  instruments  related  to  any  of  the  collateral securing the Secured Obligations as the Administrative Agent, or the Required Lenders  through the Administrative Agent, may reasonably require from time to time in order to carry out  more effectively the purposes of the Loan Documents.                                            76  





 






                   ARTICLE VI.  REPRESENTATIONS AND WARRANTIES                                                 Section 6.1.  Corporate Existence; Subsidiaries; Foreign Qualification.  Each Company is  duly organized, validly existing, and in good standing (or comparable concept in the applicable  jurisdiction)  under  the  laws  of  its  state  or  jurisdiction  of  incorporation  or  organization,  and  is  duly qualified and authorized to do business and is in good standing (or comparable concept in  the applicable jurisdiction) as a foreign entity in the jurisdictions set forth opposite its name on  Schedule 6.1 hereto, which are all of the states or jurisdictions where the character of its property  or its business activities makes such qualification necessary, except where a failure to so qualify  would not reasonably be expected to have a Material Adverse Effect.  Schedule 6.1 hereto sets  forth, as of the Restatement Date, each Subsidiary of the Borrower (and whether such Subsidiary  is a Dormant Subsidiary), its state (or jurisdiction) of formation, its relationship to the Borrower,  including the percentage of each  class of stock  or other  equity interest  owned by  a Company,  each Person that owns the stock or other equity interest of each Company, its tax identification  number, the location of its chief executive office and its principal place of business.  Except as  set forth on Schedule 6.1 hereto, as of the Restatement Date, the Borrower, directly or indirectly,  owns all of the equity interests of each of its Subsidiaries.          Section 6.2.  Corporate Authority.  Each Credit Party has the right and power and is duly  authorized and empowered to enter into, execute and deliver the Loan Documents to which it is a  party and to perform and observe the provisions of the Loan Documents.  The Loan Documents  to which each Credit Party is  a party have been duly authorized and approved by such Credit  Party’s  board  of directors  or  other governing  body,  as  applicable,  and  are  the  legal,  valid  and  binding  obligations  of  such  Credit  Party,  enforceable  against  such  Credit  Party  in  accordance  with  their  respective  terms,  except  as  enforceability  thereof  may  be  limited  by  bankruptcy,  insolvency  or  similar  laws  affecting  the  enforcement  of  creditors’  rights  generally  and  by  equitable  principles  (regardless  of,  whether  enforcement  is  sought  in  equity  or  at  law).   The  execution,  delivery  and  performance  of  the  Loan  Documents  do  not  conflict  with,  result  in  a  breach in any of the provisions of, constitute a default under, or result in the creation of a Lien  (other  than  Liens  permitted  under  Section  5.9  hereof)  upon  any  assets  or  property  of  any  Company under the provisions of, such Company’s Organizational Documents or any material  agreement to which such Company is a party.          Section 6.3.  Compliance with Laws and Contracts.  Each Company:          (a)   holds  permits,  certificates,  licenses,  orders,  registrations,  franchises,  authorizations, and other approvals from any Governmental Authority necessary for the conduct  of its business and is in compliance with all applicable laws relating thereto, except where the  failure to do so would not have a Material Adverse Effect;          (b)   is in compliance with all federal, state, local, or foreign applicable statutes, rules,  regulations, and orders including, without limitation, those relating to environmental protection,  occupational safety and health, and equal employment practices, except where the failure to be in  compliance would not have a Material Adverse Effect;                                            77  





 






         (c)   is not in violation of or in default under any agreement to which it is a party or by  which its assets are subject or bound, except with respect to any violation or default that would  not have a Material Adverse Effect;          (d)   has ensured that no Company, or to the knowledge of any Company, any director,  officer, agent, employee or affiliate of a Company, is a Person that is, or is owned or controlled  by  Persons  that  are  (i)  the  subject  of any  Sanctions,  or (ii)  located,  organized  or resident  in  a  country or territory that is, or whose government is, the subject of Sanctions;           (e)   is in compliance with all applicable Bank Secrecy Act (“BSA”) and anti-money  laundering laws and regulations; and          (f)   has ensured that no Company or, to the knowledge of any Company, any director,  officer, agent, employee or other person acting  on behalf of a Company has taken any action,  directly or indirectly, that would result in a violation by such persons of Anti-Corruption Laws,  and the Credit Parties have instituted and maintain policies and procedures designed to ensure  continued compliance therewith; and          (g)   is in compliance with the Patriot Act.          Section  6.4.   Litigation  and  Administrative  Proceedings.   Except  as  disclosed  on  Schedule  6.4  hereto,  there  are  (a)  no  lawsuits,  actions,  investigations,  examinations  or  other  proceedings pending or, to the knowledge of the Borrower, threatened against any Company, or  in  respect  of  which  any  Company  may  have  any  liability,  in  any  court  or  before  or  by  any  Governmental Authority, arbitration board, or other tribunal that could reasonably be expected to  have a Material Adverse Effect, (b) no orders, writs, injunctions, judgments, or decrees of any  court or Governmental Authority to which any Company is a party or by which the property or  assets of any Company are bound that could reasonably be expected to have a Material Adverse  Effect,  and  (c)  no  grievances,  disputes,  or  controversies  outstanding  with  any  union  or  other  organization of the employees of any Company, or threats of work stoppage, strike, or pending  demands for collective bargaining that could reasonably be expected to have a Material Adverse  Effect.          Section  6.5.   Title  to  Assets.   Each  Company  has  good  title  to  and  ownership  of  all  property it purports to own, which property is free and clear of all Liens, except those permitted  under Section 5.9 hereof.  As of the Closing Date, the Companies do not own any real estate.          Section  6.6.   Liens  and  Security  Interests.   On  and  after  the  Closing  Date,  except  for  Liens  permitted  pursuant  to  Section  5.9  hereof,  (a)  there  is  and  will  be  no  U.C.C.  Financing  Statement or similar notice of Lien outstanding covering any personal property of any Company;  (b)  there  is  and  will  be no  mortgage  or  charge  outstanding  covering  any  real  property  of  any  Company; and (c) no real or personal property of any Company is subject to any  Lien of any  kind.  The Administrative Agent, for the benefit of the Lenders, upon the filing of the U.C.C.  Financing  Statements  and  taking  such  other  actions  necessary  to  perfect  its  Lien  against  collateral of the corresponding type as authorized hereunder will have a valid and enforceable  first  Lien  on  the  collateral  securing  the  Secured  Obligations  subject  only  to  Liens  permitted                                          78  





 






   under Section 5.9 hereof.  No Company has entered into any contract or agreement (other than a  contract or agreement entered into in connection with the purchase or lease of fixed assets that  prohibits Liens on such fixed assets or a contract or agreement entered into in the ordinary course  of business that does not permit Liens on, or collateral  assignment  of,  the property relating to  such  contract  or  agreement)  that  exists  on  or  after  the  Closing  Date  that  would  prohibit  the  Administrative Agent or the Lenders from acquiring a Lien on, or a collateral assignment of, any  of the property or assets of any Company.          Section  6.7.   Tax  Returns.   All  federal,  state  and  local  tax  returns  and  other  reports  required by law to be filed in respect of the income, business, properties and employees of each  Company have been timely filed (subject to valid extensions) and all taxes, assessments, fees and  other governmental charges that are due and payable have been timely paid, except as otherwise  permitted herein or where the failure to do so does not and will not cause or result in a Material  Adverse Effect.  The provision for taxes on the books of each Company is adequate for all years  not closed by applicable statutes and for the current fiscal year.           Section  6.8.   Environmental  Laws.   Each  Company  is  in  compliance  with  all  Environmental Laws, including, without limitation, all Environmental Laws in all jurisdictions in  which any Company owns or operates, or has owned or operated, a facility or site, arranges or  has  arranged  for  disposal  or  treatment  of  hazardous  substances,  solid  waste  or  other  wastes,  accepts or has accepted for transport any hazardous substances, solid waste or other wastes or  holds or has held any interest in real property or otherwise, except for such non-compliance that  could not reasonably be expected to have a Material Adverse Effect.  No litigation or proceeding  arising under, relating to or in connection with any Environmental Law or Environmental Permit  is pending or, to the best knowledge of each Company, threatened, against any Company, any  real  property  in  which  any  Company  holds  or  has  held  an  interest  or  any  past  or  present  operation of any Company that could reasonably be expected to have a Material Adverse Effect.   No  material  release,  threatened  release  or  disposal  of  hazardous  waste,  solid  waste  or  other  wastes  is  occurring,  or  has  occurred  (other  than  those  that  are  currently  being  remediated  in  accordance with Environmental Laws), on, under or to any real property in which any Company  holds any interest or performs any of its operations, in violation in any material respect of any  Environmental Law, in each case, except for such items that could not reasonably be expected to  have a Material Adverse Effect.  As used in this Section 6.8, “litigation or proceeding” means  any  demand,  claim,  notice,  suit,  suit  in  equity,  action,  administrative  action,  investigation  or  inquiry whether brought by any Governmental Authority or private Person, or otherwise.          Section 6.9.  Locations.  As of the Closing Date, the Companies have places of business  or  maintain  their  Accounts,  Inventory  and  Equipment  at  the  locations  (including  third  party  locations)  set  forth  on  Schedule  6.9  hereto,  and  each  Company’s  chief  executive  office  is  set  forth on Schedule 6.9 hereto.  Schedule 6.9 hereto further specifies whether each location, as of  the Closing Date, (a) is owned by the Companies, or (b) is leased by a Company from a third  party, and, if leased by a Company from a third party, if a Landlord’s Waiver is required to be  delivered pursuant to the terms hereof.  As of the Closing Date, Schedule 6.9 hereto correctly  identifies the name and address of each third party location where assets of the Companies are  located.                                            79  





 






         Section 6.10.  Continued Business.  There exists no actual, pending, or, to the Borrower’s  knowledge,  any  threatened  termination,  cancellation  or  limitation  of,  or  any  modification  or  change (other than consistent with past business practices of the Companies and at the election of  the Companies) in the business relationship of any Company and any customer or supplier, or  any  group  of  customers  or  suppliers,  whose  purchases  or  supplies,  individually  or  in  the  aggregate, are material to the business of any Company, which could reasonably be expected to  have a Material Adverse Effect, and there exists no other present condition or state of facts or  circumstances that would have a Material Adverse Effect or prevent a Company from conducting  such  business  or  the  transactions  contemplated  by  this  Agreement  in  substantially  the  same  manner in which it was previously conducted.          Section  6.11.   Employee  Benefits  Plans.   Schedule  6.11  hereto  identifies  each  ERISA  Plan as of the Closing Date.  No ERISA Event has occurred or is expected to occur with respect  to an ERISA Plan.  Disregarding any matters which do not have a Material Adverse Effect: (a)  full payment has been made of all amounts that a Controlled Group member is required, under  applicable law or under the governing documents, to have paid as a contribution to or a benefit  under each ERISA Plan; (b) the liability of each Controlled Group member with respect to each  ERISA Plan has been fully funded based upon reasonable and proper actuarial assumptions, has  been  fully  insured,  or  has  been  appropriately  reserved  for  on  its  financial  statements;  (c)  no  changes have occurred or are expected to occur that would cause a material increase in the cost  of providing benefits under the ERISA Plan; (d)  with respect to each ERISA Plan administered  by a Company or a Controlled Group member that is intended to be qualified under Code Section  401(a),  (i)  the  ERISA  Plan  and  any  associated  trust  operationally  comply  with  the  applicable  requirements  of  Code  Section  401(a),  (ii)  the  ERISA  Plan  and  any  associated  trust  have  been  amended  to  comply  with  all  such  requirements  as  currently  in  effect,  other  than  those  requirements for which a retroactive amendment can be made within the “remedial amendment  period” available under Code Section 401(b) (as extended under Treasury Regulations and other  Treasury  pronouncements  upon  which  taxpayers  may  rely),  (iii)  the  ERISA  Plan  and  any  associated trust have received a favorable determination letter or opinion letter from the Internal  Revenue Service stating that the ERISA Plan (or a prototype or volume submitter plan utilized as  the plan document for such ERISA Plan) qualifies under Code Section 401(a), that the associated  trust  qualifies  under  Code  Section  501(a)  and,  if  applicable,  that  any  cash  or  deferred  arrangement under the ERISA Plan qualifies under Code Section 401(k), unless the ERISA Plan  was first adopted at a time for which the above-described “remedial amendment period” has not  yet  expired,  (iv)  the  ERISA  Plan  currently  satisfies  the  requirements  of  Code  Section  410(b),  without  regard  to  any  retroactive  amendment  that  may  be  made  within  the  above-described  “remedial amendment period”, and (v) no contribution made to the ERISA Plan is subject to an  excise tax under Code Section 4972; and (e) with respect to any Pension Plan, the “accumulated  benefit  obligation”  of  Controlled  Group  members  with  respect  to  the  Pension  Plan  (as  determined  in  accordance  with  Statement  of  Accounting  Standards  No.  87,  “Employers’  Accounting for Pensions”) does not exceed the fair market value of Pension Plan assets.          Section 6.12.  Consents or Approvals.  Except as set forth on Schedule 6.12 hereto, and  pursuant to Section 5.25 hereof, no consent, approval or authorization of, or filing, registration or  qualification with, any Governmental Authority or any other Person is required to be obtained or  completed by any Company in connection with the execution, delivery or performance of any of                                          80  





 






   the  Loan  Documents,  that  has  not  already  been  obtained  or  completed,  except  the  filing  and  recording of financing statements and other documents necessary in order to perfect the Liens  created by this Agreement or the Security Documents.          Section 6.13.  Solvency.  The Borrower has received consideration that is the reasonably  equivalent  value  of  the  obligations  and  liabilities  that  the  Borrower  has  incurred  to  the  Administrative  Agent  and  the  Lenders.   The  Borrower  is  not  insolvent  as  defined  in  any  applicable state, federal or relevant foreign statute, nor will the Borrower be rendered insolvent  by  the  execution  and  delivery  of  the  Loan  Documents  to  the  Administrative  Agent  and  the  Lenders.   The  Borrower  is  not  engaged  or  about  to  engage  in  any  business  or  transaction  for  which the assets retained by it are or will be an unreasonably small amount of capital, taking into  consideration the obligations to the Administrative Agent and the  Lenders incurred hereunder.   The Borrower does not intend to, nor does it believe that it will, incur debts beyond its ability to  pay such debts as they mature.          Section 6.14.  Financial Statements.  The audited Consolidated financial statements of the  Borrower for the fiscal year ended December 31, 2015 and the unaudited Consolidated financial  statements  of  the  Borrower  for  the  fiscal  quarter  ended  June  30,  2016,  furnished  to  the  Administrative Agent and the Lenders, are true and complete, in all material respects, have been  prepared  in  accordance  with  GAAP,  and  fairly  present,  in  all  material  respects,  the  financial  condition of the Companies as of the dates of such financial statements and the results of their  operations for the periods then ending.  Since the dates of such statements, there has been no  material  adverse  change  in  any  Company’s  financial  condition,  properties  or  business  or  any  change in any Company’s accounting procedures, other than as required by GAAP.          Section 6.15.  Regulations.  No Company is engaged principally or as one of its important  activities,  in  the  business  of  extending  credit  for  the  purpose  of  purchasing  or  carrying  any  “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal  Reserve  System  of  the  United  States).   Neither  the  granting  of  any  Loan  (or  any  conversion  thereof)  or  Letter  of  Credit  nor  the  use  of  the  proceeds  of  any  Loan  or  Letter  of  Credit  will  violate, or be inconsistent with, the provisions of Regulation T, U or X or any other Regulation  of such Board of Governors.          Section 6.16.  Material Agreements.  Except as disclosed on Schedule 5.8 and Schedule  6.16 hereto, as of the Closing Date, no Company is a party to any (a) debt instrument (excluding  the  Loan  Documents);  (b)  lease  (capital,  operating  or  otherwise),  whether  as  lessee  or  lessor  thereunder; (c) contract, commitment, agreement, or other arrangement involving the purchase or  sale of any inventory by it, or the license of any right to or by it other than such contracts and  agreements entered into in the ordinary course of business; (d) contract, commitment, agreement,  or other arrangement with any of its “Affiliates” (as such term is defined in the Exchange Act)  other than a Company; (e) management or employment contract or contract for personal services  with any of its Affiliates that is not otherwise terminable at will or on less than ninety (90) days’  notice  without  liability;  (f)  collective  bargaining  agreement;  or  (g)  other  contract,  agreement,  understanding, or arrangement with a third party; that, as to subparts (a) through (g) above, if  violated, breached, or terminated for any reason, would have or would be reasonably expected to  have a Material Adverse Effect.                                          81  





 






           Section 6.17.  Intellectual Property.  Each Company owns, or has the right to use, all of  the material patents, patent applications, industrial designs, designs, trademarks, service marks,  copyrights and licenses, and rights with respect to the foregoing, necessary for the conduct of its  business without any known material conflict with the rights of others.  Schedule 6.17 hereto sets  forth  all  federally  registered  patents,  trademarks,  copyrights,  service  marks  and  license  agreements owned by each Company as of the Closing Date.          Section 6.18.  Insurance.  Each Company maintains with financially sound and reputable  insurers  insurance  with  coverage  (including,  if  applicable,  insurance  coverage  required  by  the  National Flood Insurance Reform Act of 1994) and limits as required by law and as is customary  with Persons engaged in the same businesses as the Companies.  Schedule 6.18 hereto sets forth  all insurance carried by the Companies on the Closing Date, setting forth in detail the amount  and type of such insurance.          Section 6.19.  Deposit Accounts and Securities Accounts.  Schedule 6.19 hereto lists all  banks, other financial institutions and Securities Intermediaries at which any Company maintains  Deposit  Accounts  or  Securities  Accounts  as  of  the  Closing  Date,  and  Schedule  6.19  hereto  correctly identifies the name, address and telephone number of each such financial institution or  Securities Intermediary, the name in which the account is held, a description of the purpose of  the account, and the complete account number therefor.          Section 6.20.  Accurate and Complete Statements.  Neither the Loan Documents nor any  written  statement  made  by  any  Company  in  connection  with  any  of  the  Loan  Documents  contains any untrue statement of a material fact or, taken as a whole,  omits to state a material  fact  necessary  to  make  the  statements  contained  therein  or  in  the  Loan  Documents  not  misleading.  After due inquiry by the Borrower, there is no known fact that any Company has not  disclosed to the Administrative Agent and the  Lenders that has or is likely to have a Material  Adverse Effect.          Section  6.21.   Investment  Company;  Other  Restrictions.   No  Company  is  (a)  an  “investment  company”  or  a  company  “controlled”  by  an  “investment  company”  within  the  meaning of the Investment Company Act of 1940, as amended, or (b) subject to  any foreign,  federal, state or local statute or regulation limiting its ability to incur Indebtedness, except for the  consents required under applicable law in connection with the Licenses as set forth in Section  5.25 hereof.          Section 6.22.  Defaults.  No Default or Event of Default exists, nor will any begin to exist  immediately after the execution and delivery hereof.                                 ARTICLE VII. SECURITY          Section 7.1.  Security Interest in Collateral.  In consideration of and as security for the  full and complete payment of all of the Secured Obligations, the Borrower hereby grants to the                                          82  





 






   Administrative  Agent,  for  the  benefit  of  the  Lenders  (and  affiliates  thereof  that  hold  Secured  Obligations), a security interest in the Collateral.          Section 7.2.  Collections and Receipt of Proceeds by Borrower.            (a)   Prior  to  the  exercise  by  the  Administrative  Agent  and  the  Required  Lenders  of  their rights under Article IX hereof, both (i) the lawful collection and enforcement of all of the  Borrower’s Accounts, and (ii) the lawful receipt and retention by the Borrower of all Proceeds of  all of the Borrower’s Accounts and Inventory shall be as the agent of the Administrative Agent  and the Lenders.            (b)   Upon  written  notice  to  the  Borrower  from  the  Administrative  Agent  after  the  occurrence and during the continuance of an Event of Default, a Cash Collateral Account shall  be opened by the Borrower at the main office of the Administrative Agent (or such other office  as  shall  be  designated  by  the  Administrative  Agent)  and  all  such  lawful  collections  of  the  Borrower’s  Accounts  and  such  Proceeds  of  the  Borrower’s  Accounts  and  Inventory  shall  be  remitted  daily  by  the  Borrower  to  the  Administrative  Agent  in  the  form  in  which  they  are  received by the Borrower, either by mailing or by delivering such collections and Proceeds to the  Administrative Agent, appropriately endorsed for deposit in the Cash Collateral Account.  In the  event  that  such  notice  is  given  to  the  Borrower  from  the  Administrative  Agent,  the  Borrower  shall  not  commingle  such  collections  or  Proceeds  with  any  of  the  Borrower’s  other  funds  or  property,  but  shall  hold  such  collections  and  Proceeds  separate  and  apart  therefrom  upon  an  express  trust  for  the  Administrative  Agent,  for  the  benefit  of  the  Lenders.   In  such  case,  the  Administrative  Agent  may,  in  its  sole  discretion,  and  shall,  at  the  request  of  the  Required  Lenders, at any time and from time to time , apply all or any portion of the account balance in the  Cash Collateral Account as a credit against (i) the outstanding principal or interest of the Loans,  or (ii) any other Secured Obligations in accordance with this Agreement.  If any remittance shall  be dishonored, or if, upon final payment, any claim with respect thereto shall be made against the  Administrative Agent on its warranties of collection, the Administrative Agent may charge the  amount  of  such  item  against  the  Cash  Collateral  Account  or  any  other  Deposit  Account  maintained by the Borrower with the Administrative Agent or with any other Lender, and, in any  event, retain the same and the Borrower’s interest therein as additional security for the Secured  Obligations.  The Administrative Agent may, in its sole discretion, at any time and from time to  time, release funds from the Cash Collateral Account to the Borrower for use in the Borrower’s  business.  The balance in the Cash Collateral Account may be withdrawn by the Borrower upon  termination of this Agreement and payment in full of all of the Secured Obligations.          (c)   After  the  occurrence  and  during  the  continuance  of  an  Event  of  Default,  at  the  Administrative  Agent’s  written  request,  the  Borrower  shall  cause  all  remittances  representing  collections and Proceeds of Collateral to be mailed to a lockbox at a location acceptable to the  Administrative Agent, to which the Administrative Agent shall have access for the processing of  such  items  in  accordance  with  the  provisions,  terms  and  conditions  of  the  customary  lockbox  agreement of the Administrative Agent.          (d)   The  Administrative  Agent,  or  the  Administrative  Agent’s  designated  agent,  is  hereby constituted and appointed attorney-in-fact for the Borrower with authority and power to                                          83  





 






   endorse,  after  the  occurrence  and  during  the  continuance  of  an  Event  of  Default,  any  and  all  instruments,  documents,  and  chattel  paper  upon  the  failure  of  the  Borrower  to  do  so.   Such  authority  and  power,  being  coupled  with  an  interest,  shall  be  (i)  irrevocable  until  all  of  the  Secured  Obligations  are  paid,  (ii)  exercisable  by  the  Administrative  Agent  at  any  time  and  without  any  request  upon  the  Borrower  by  the  Administrative  Agent  to  so  endorse,  and  (iii)  exercisable  in  the  name  of  the  Administrative  Agent  or  the  Borrower.   The  Borrower  hereby  waives presentment, demand, notice of dishonor, protest, notice of protest, and any and all other  similar notices with respect thereto, regardless of the form of any endorsement thereof.  Neither  the  Administrative  Agent  nor  the  Lenders  shall  be  bound  or  obligated  to  take  any  action  to  preserve any rights therein against prior parties thereto.          Section 7.3.  Collections and Receipt of Proceeds by Administrative Agent.  Each Credit  Party hereby constitutes and appoints the Administrative Agent, or the Administrative Agent’s  designated agent, as the Borrower’s attorney-in-fact to exercise, at any time, after the occurrence  and during the  continuance of an Event of Default, all or any of the following powers which,  being coupled with an interest, shall be irrevocable until the complete and full payment of all of  the Secured Obligations:          (a)   to  receive,  retain,  acquire,  take,  endorse,  assign,  deliver,  accept,  and  deposit,  in  the name of the Administrative Agent or such Credit Party, any and all of such Credit Party’s  cash,  instruments,  chattel  paper,  documents,  Proceeds  of  Accounts,  Proceeds  of  Inventory,  collection  of  Accounts,  and  any  other  writings  relating  to  any  of  the  Collateral.   Each  Credit  Party hereby waives presentment, demand, notice of dishonor, protest, notice of protest, and any  and  all  other  similar  notices  with  respect  thereto,  regardless  of  the  form  of  any  endorsement  thereof.  The Administrative Agent shall not be bound or obligated to take any action to preserve  any rights therein against prior parties thereto;          (b)   to  transmit  to  Account  Debtors,  on  any  or  all  of  such  Credit  Party’s  Accounts,  notice of assignment to the Administrative Agent, for the benefit of the Lenders, thereof and the  security interest therein, and to request from such Account Debtors at any time, in the name of  the Administrative Agent or such Credit Party, information concerning the Borrower’s Accounts  and the amounts owing thereon;          (c)   to transmit to purchasers of any or all of such Credit Party’s Inventory, notice of  the Administrative Agent’s security interest therein, and to request from such purchasers at any  time, in the name of the Administrative Agent or such Credit Party, information concerning such  Credit Party’s Inventory and the amounts owing thereon by such purchasers;          (d)   to  notify  and  require  Account  Debtors  on  such  Credit  Party’s  Accounts  and  purchasers of such Credit Party’s Inventory to make payment of their indebtedness directly to the  Administrative Agent;          (e)   to  enter  into  or  assent  to  such  amendment,  compromise,  extension,  release  or  other  modification  of  any  kind  of,  or  substitution  for,  the  Accounts,  or  any  thereof,  as  the  Administrative Agent, in its sole discretion, may deem to be advisable;                                            84  





 






         (f)   to  enforce  the  Accounts  or  any  thereof,  or  any  other  Collateral,  by  suit  or  otherwise, to maintain any such suit or other proceeding in the name of the Administrative Agent  or one or more Credit Parties, and to withdraw any such suit or other proceeding.  The Credit  Parties agree to lend  every assistance  requested  by the Administrative Agent in respect of the  foregoing,  all  at  no  cost  or  expense  to  the  Administrative  Agent  and  including,  without  limitation,  the  furnishing  of  such  witnesses  and  of  such  records  and  other  writings  as  the  Administrative  Agent  may  reasonably  require  in  connection  with  making  legal  proof  of  any  Account.  The Credit Parties agree to  reimburse  the Administrative Agent in full  for  all court  costs and attorneys’ fees and every other cost, expense or liability, if any, incurred or paid by the  Administrative Agent in connection with the foregoing, which obligation of such Credit Parties  shall constitute Obligations, shall be secured by the Collateral and shall bear interest, until paid,  at the Default Rate;          (g)   to take or bring, in the name of the Administrative Agent or such Credit Party, all  steps, actions, suits, or proceedings deemed by the Administrative Agent necessary or desirable  to effect the receipt, enforcement, and collection of the Collateral; and          (h)   to  accept  all  collections  in  any  form  relating  to  the  Collateral,  including  remittances that may reflect deductions, and to deposit the same into the Cash Collateral Account  or, at the option of the Administrative Agent, to apply them as a payment against the Loans or  any other Secured Obligations in accordance with this Agreement.          Section  7.4.   Administrative  Agent’s  Authority  Under  Pledged  Notes.   For  the  better  protection  of  the  Administrative  Agent  and  the  Lenders  hereunder,  each  Credit  Party,  as  appropriate,  will  execute,  with  respect  to  any  existing  or  future  Pledged  Notes  an  appropriate  endorsement on (or separate from) each Pledged Note and with respect to Pledged Notes in the  original principal amount in excess of Two Hundred Fifty Thousand Dollars ($250,000), or upon  request after the occurrence and during the continuance of an Event of Default, has deposited (or  will deposit, with respect to future Pledged Notes) such Pledged Notes with the Administrative  Agent, for the benefit of the Lenders.  Such Credit Party irrevocably authorizes and empowers  the Administrative Agent, for the benefit of the Lenders, to, after the occurrence and during the  continuance  of  an  Event  of  Default,  (a)  ask  for,  demand,  collect  and  receive  all  payments  of  principal of and interest on the Pledged Notes; (b) compromise and settle any dispute arising in  respect  of  the  foregoing;  (c)  execute  and  deliver  vouchers,  receipts  and  acquittances  in  full  discharge  of  the  foregoing;  (d)  exercise,  in  the  Administrative  Agent’s  discretion,  any  right,  power or privilege granted to the holder of any Pledged Note by the provisions thereof including,  without limitation, the right to demand security or to waive any default thereunder; (e) endorse  such Credit Party’s name to each check or other writing received by the Administrative Agent as  a payment or other proceeds of or otherwise in connection with any Pledged Note; (f) enforce  delivery and payment of the principal and/or interest on the Pledged Notes, in each case by suit  or otherwise as the Administrative Agent may desire; and (g) enforce the security, if any, for the  Pledged  Notes  by  instituting  foreclosure  proceedings,  by  conducting  public  or  other  sales  or  otherwise, and to take all other steps as the Administrative Agent, in its discretion, may deem  advisable in connection with the forgoing; provided that nothing contained or implied herein or  elsewhere shall obligate the Administrative Agent to institute any action, suit or proceeding or to  make or do any other act or thing contemplated by this Section 7.4 or prohibit the Administrative                                          85  





 






   Agent  from  settling,  withdrawing  or  dismissing  any  action,  suit  or  proceeding  or  require  the  Administrative Agent to preserve any other right of any kind in respect of the Pledged Notes and  the security, if any, therefor.          Section  7.5.   Commercial  Tort  Claims.   If  any  Credit  Party  shall  at  any  time  hold  or  acquire a Commercial Tort Claim in excess of Two Hundred Fifty Thousand Dollars ($250,000),  such Credit Party shall promptly notify the Administrative Agent thereof in a writing signed by  such Credit Party, that sets forth the details thereof and grants to the Administrative Agent (for  the benefit of the Lenders) a Lien thereon and on the Proceeds thereof, all upon the terms of this  Agreement,  with  such  writing  to  be  prepared  by  and  in  form  and  substance  reasonably  satisfactory to the Administrative Agent.          Section 7.6.  Use of Inventory and Equipment.  Until the exercise by the Administrative  Agent and the Required Lenders of their rights under Article IX hereof, each Credit Party may  (a)  retain  possession  of  and  use  its  Inventory  and  Equipment  in  any  lawful  manner  not  inconsistent with this Agreement or with the terms, conditions, or provisions of any policy  of  insurance thereon; (b) sell or lease its Inventory or Equipment in the ordinary course of business  or  as  otherwise  permitted  by  this  Agreement;  and  (c)  use  and  consume  any  raw  materials  or  supplies, the use and consumption of which are necessary in order to carry on such Credit Party’s  business.    Notwithstanding  anything  contained  in  this  Article  VII  or  in  any  other  provisions  of  this  Agreement  or  any  other  Loan  Document  to  the  contrary,  the  representations,  warranties  and  covenants  made  by  any  relevant  Credit  Party  in  this  Agreement  with  respect  to  the  creation,  perfection or priority (as applicable) of the security interest granted in favor of Administrative  Agent and Lenders shall be deemed not to apply to Excluded Property or, to the extent relating to  perfection,  Excluded  Accounts  and  other  assets  not  required  to  be  subject  to  Liens  that  are  perfected pursuant to the provisions of this Agreement.                                                                  ARTICLE VIII.  EVENTS OF DEFAULT                                                 Any  of  the  following  specified  events  shall  constitute  an  Event  of  Default  (each  an  “Event of Default”):          Section 8.1.  Payments.  If (a) the interest on any Loan, any commitment or other fee, or  any  other  Obligation  not  listed  in  subpart  (b)  hereof,  shall  not  be  paid  in  full  within  three  Business Days of any applicable date when due and payable, or (b) the principal of any Loan, or  any  reimbursement  obligation  under  any  Letter  of  Credit  that  has  been  drawn,  or  any  amount  owing pursuant to Section 2.12(a) or (b) hereof shall not be paid in full when due and payable.            Section  8.2.   Special  Covenants.   If  any  Company  shall  fail  or  omit  to  perform  and  observe Section 5.7, 5.8, 5.9, 5.11, 5.12, 5.13, 5.15, 5.18 or 5.24 hereof.           Section 8.3.  Other Covenants.  If any Company shall fail or omit to perform and observe  any  agreement  or  other  provision  (other  than  those  referred  to  in  Section  8.1  or  8.2  hereof)                                          86  





 






   contained  or  referred  to  in  this  Agreement  or  any  other  Related  Writing  that  is  on  such  Company’s part to be complied with, and that Default shall not have been fully corrected within  thirty  (30)  days  (or  fifteen  (15)  days  with  respect  to  Section  2.12(c)  or  5.3  hereof)  after  the  earlier of (a) any Financial Officer of such Company becomes aware of the occurrence thereof,  or (b) the giving of written notice thereof to the Borrower by the Administrative Agent or the  Required Lenders that the specified Default is to be remedied.          Section  8.4.   Representations  and  Warranties.   If  any  representation,  warranty  or  statement  made  in  or  pursuant  to  this  Agreement  or  any  other  Related  Writing  or  any  other  material information furnished by any Company to the Administrative Agent or the Lenders, or  any thereof, shall be false or erroneous, in any material respect when made or deemed made.          Section 8.5.  Cross Default.  If any Company shall default in the payment of principal or  interest due and owing under any Material Indebtedness Agreement beyond any period of grace  provided with respect thereto or in the performance or observance of any other agreement, term  or  condition  contained  in  any  agreement  under  which  such  obligation  is  created  beyond  any  period  of  grace  provided  with  respect  thereto,  if  the  effect  of  such  default  is  to  allow  the  acceleration of the maturity of such Indebtedness or to permit the holder thereof to cause such  Indebtedness to become due prior to its stated maturity.          Section  8.6.   ERISA  Default.   The  occurrence  of  one  or  more  ERISA  Events  or  the  imposition  of  a  Lien  on  the  assets  of  the  Company  in  accordance  with  Section  430(k)  of  the  Code of any Company.          Section 8.7.  Change in Control.  If any Change in Control shall occur.          Section 8.8.  Judgments.  There is entered against any Company:          (a)   a  final  judgment  or  order  for  the  payment  of  money  by  a  court  of  competent  jurisdiction,  that  remains  unpaid  or  unstayed  and  undischarged  for  a  period  (during  which  execution shall not be effectively stayed) of forty-five (45) days after the date on which the right  to appeal has expired, provided that such occurrence shall constitute an Event of Default only if  the aggregate of all such judgments for all such Companies, shall exceed Three Million Dollars  ($3,000,000)  (less  any  amount  that  will  be  covered  by  the  proceeds  of  insurance  and  is  not  subject to dispute by the insurance provider); or          (b)   any one or more non-monetary final judgments that are not covered by insurance,  or, if covered by insurance, for which the insurance company has not agreed to or acknowledged  coverage, and that, in either case, the Required Lenders reasonably determine have, or could be  expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case,  (i) enforcement proceedings are commenced by the prevailing party or any creditor upon such  judgment or order, or (ii) there is a period of three consecutive Business Days during which a  stay  of  enforcement  of  such  judgment,  by  reason  of  a  pending  appeal  or  otherwise,  is  not  in  effect.                                            87  





 






         Section 8.9.  Security.  If any Lien as to any material amount of Collateral (as determined  by the Administrative Agent, in its reasonable discretion) granted in this Agreement or any other  Loan Document  in  favor of the Administrative Agent, for the benefit  of the  Lenders, shall be  determined  to  be  (a)  void,  voidable  or  invalid,  or  is  subordinated  or  not  otherwise  given  the  priority contemplated by this Agreement and the Borrower (or the appropriate Credit Party) has  failed to promptly execute appropriate documents to correct such matters, or (b) unperfected as  to  any  material  amount  of  Collateral  (as  determined  by  the  Administrative  Agent,  in  its  reasonable discretion) and the Borrower (or the appropriate Credit Party) has failed to promptly  execute appropriate documents to correct such matters.          Section  8.10.   Validity  of  Loan  Documents.   If  (a)  any  material  provision,  in  the  sole  opinion of the Administrative Agent, of any Loan Document shall at any time cease to be valid,  binding and enforceable against any Credit Party; (b) the validity, binding effect or enforceability  of any Loan Document against any Credit Party shall be contested by any Credit Party; (c) any  Credit  Party  shall  deny  that  it  has  any  or  further  liability  or  obligation  under  any  Loan  Document;  or  (d)  any  Loan  Document  shall  be  terminated,  invalidated  or  set  aside,  or  be  declared ineffective or inoperative or in any way cease to give or provide to the Administrative  Agent and the Lenders any material benefits purported to be created thereby.          Section  8.11.   Solvency.   If  any  Company  (other  than  a  Dormant  Subsidiary)  shall  (a)  except as permitted pursuant to Section 5.12 hereof, discontinue business; (b) generally not pay  its debts as such debts become due; (c) make a general assignment for the benefit of creditors;  (d)  apply  for  or  consent  to  the  appointment  of  an  interim  receiver,  a  receiver,  a  receiver  and  manager, an administrator, a sequestrator, a monitor, a custodian, a trustee, an interim trustee, a  liquidator, an agent or any other similar official of all or a substantial part of its assets or of such  Company; (e) be adjudicated a debtor or insolvent or have entered against it an order for relief  under the Bankruptcy Code, or under any other bankruptcy insolvency, liquidation, winding-up,  corporate  or  similar  statute  or  law,  foreign,  federal,  state  or  provincial,  in  any  applicable  jurisdiction,  now  or  hereafter existing,  as  any  of  the  foregoing  may  be  amended  from  time  to  time, or other applicable statute for jurisdictions outside of the United States, as the case may be;  (f) file a voluntary petition under the Bankruptcy Code or seek relief under any bankruptcy or  insolvency or analogous law in any jurisdiction outside of the United States, or file a proposal or  notice of intention to file such petition; (g) have an involuntary proceeding under the Bankruptcy  Code  filed  against  it  and  the  same  shall  not  be  controverted  within  ten  (10)  days,  or  shall  continue undismissed for a period of sixty (60) days from commencement of such proceeding or  case;  (h)  file  a  petition,  an  answer,  an  application  or  a  proposal  seeking  reorganization  or  an  arrangement  with  creditors  or  seeking  to  take  advantage  of  any  other  law  (whether  federal,  provincial or state, or, if applicable, other jurisdiction) relating to relief of debtors, or admit (by  answer,  by  default  or  otherwise)  the  material  allegations  of  a  petition  filed  against  it  in  any  bankruptcy, reorganization, insolvency or other proceeding (whether federal, provincial or state,  or, if applicable, other jurisdiction) relating to relief of debtors; (i) suffer or permit to continue  unstayed and in effect for sixty (60) consecutive days any judgment, decree or order entered by a  court of competent jurisdiction, that approves a petition or an application or a proposal seeking  its  reorganization  or  appoints  an  interim  receiver,  a  receiver  and  manager,  an  administrator,  custodian, trustee, interim trustee or liquidator of all or a substantial part of its assets, or of such  Company;  (j)  have  an  administrative  receiver  appointed  over  the  whole  or  substantially  the                                          88  





 






   whole of its assets, or of such Company; (k) have assets, the fair market value of which is less  than its liabilities (taking into account rights of contribution and indemnification); or (l) have a  moratorium declared in respect of any of its Indebtedness, or any analogous procedure or step is  taken in any jurisdiction.                           ARTICLE IX.  REMEDIES UPON DEFAULT                                                 Notwithstanding any contrary provision or inference herein or elsewhere:          Section 9.1.  Optional Defaults.  If any Event of Default referred to in Section 8.1, 8.2,  8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9 or 8.10 hereof shall occur and be continuing, the Administrative  Agent  may,  with  the consent  of  the  Required  Lenders,  and  shall,  at  the  written  request  of  the  Required Lenders, give written notice to the Borrower to:          (a)   terminate the Commitment, if not previously terminated, and, immediately upon  such election, the obligations of the Lenders, and each thereof, to make any further Loan, and the  obligation of the Issuing Lender to issue any Letter of Credit, immediately shall be terminated;  and/or          (b)   accelerate the maturity of all of the Obligations (if the Obligations are not already  due and payable), whereupon all of the Obligations shall become and thereafter be immediately  due  and  payable  in  full  without  any  presentment  or  demand  and  without  any  further  or  other  notice of any kind, all of which are hereby waived by the Borrower.          Section  9.2.   Automatic  Defaults.   If  any  Event  of  Default  referred  to  in  Section  8.11  hereof shall occur:          (a)   all  of  the  Commitment  shall  automatically  and  immediately  terminate,  if  not  previously terminated, and no Lender thereafter shall be under any obligation to grant any further  Loan, nor shall the Issuing Lender be obligated to issue any Letter of Credit; and          (b)   the principal of and interest then outstanding on all of the Loans, and all of the  other Obligations, shall thereupon become and thereafter be immediately due and payable in full  (if  the  Obligations  are  not  already  due  and  payable),  all  without  any  presentment,  demand  or  notice of any kind, which are hereby waived by the Borrower.          Section  9.3.   Letters  of  Credit.   If  the  maturity  of  the  Obligations  shall  be  accelerated  pursuant  to  Section  9.1  or  9.2  hereof,  the  Borrower  shall  immediately  deposit  with  the  Administrative  Agent,  as  security  for  the  obligations  of  the  Borrower  and  any  Guarantor  of  Payment  to  reimburse  the  Administrative  Agent  and  the  Revolving  Lenders  for  any  then  outstanding Letters of Credit, cash equal to one hundred five percent (105%) of the sum of the  aggregate undrawn balance of any then outstanding Letters of Credit.  The Administrative Agent  and the Lenders are hereby authorized, at their option, to deduct any and all such amounts from  any  deposit  balances  then  owing  by  any  Lender  (or  any  affiliate  of  such  Lender,  wherever  located) to or for the  credit or account  of any Company, as security for  the obligations of the                                          89  





 






   Borrower and any Guarantor of Payment to reimburse the Administrative Agent and the Lenders  for any then outstanding Letters of Credit.          Section  9.4.   Offsets.   If  there  shall  occur  or  exist,  and  be  continuing,  any  Event  of  Default  referred  to  in  Section  8.11  hereof  or  if  the  maturity  of  the  Obligations  is  accelerated  pursuant to Section 9.1 or 9.2 hereof, each Lender and its Affiliates shall have the right at any  time to set-off against, and to appropriate and apply toward the payment of, any and all of the  Obligations  then  owing  by  the  Borrower  or  a  Guarantor  of  Payment  to  such  Lender  or  its  Affiliate (including, without limitation, any participation purchased or to be purchased pursuant  to Section 2.2(b), 2.2(c) or 9.5 hereof), whether or not the same shall then have matured, any and  all deposit (general or special) balances and all other indebtedness then held or owing by such  Lender or its Affiliate (including, without limitation, by branches and agencies or any affiliate of  such Lender, wherever located) to or for the credit or account of the Borrower or any Guarantor  of Payment, all without  notice to or demand upon the Borrower or any other Person,  all such  notices and demands being hereby expressly waived by the Borrower.  Each Lender agrees to  notify  the  Borrower  and  the  Administrative  Agent  promptly  after  any  such  set-off  and  application  (provided  that  the  failure  to  give  such  notice  shall  not  affect  the  validity  of  such  set-off and application). In the event that any Defaulting Lender shall exercise any such right of  set-off, (a) all amounts so set-off shall be paid over immediately to the Administrative Agent for  further  application  in  accordance  with  the  provisions  of  Section  2.7(e)  and  (f)  hereof,  and,  pending such payment, shall be segregated by such Defaulting Lender from its other funds and  deemed held in trust for the benefit of the Administrative Agent, the Issuing Lender, the Swing  Line  Lender  and  the  Lenders,  and  (b)  such  Defaulting  Lender  shall  provide  promptly  to  the  Administrative Agent a statement describing in reasonable detail the Obligations owing to such  Defaulting Lender as to which it exercised such right of set-off.  Each Lender, the Issuing Lender  and the Swing Line Lender agrees to notify the Borrower and the Administrative Agent promptly  after any such set-off and application; provided that the failure to give such notice shall not affect  the validity of such set-off and application.          Section 9.5.  Equalization Provisions.          (a)   Equalization  Within  Commitments  Prior  to  an  Equalization  Event.   Each  Revolving Lender agrees with the other Revolving Lenders that, if it at any time shall obtain any  Advantage over the other Revolving Lenders, or any thereof, in respect of the Applicable Debt  (except as to Swing Loans and Letters of Credit prior to the Administrative Agent’s giving of  notice  to  participate  and  amounts  under  Article  III  hereof  and  further  excluding  any  Hedge  Agreement  or  Bank  Product  Agreement),  such  Revolving  Lender,  upon  written  request  of  the  Administrative Agent, shall purchase from the other Revolving Lenders, for cash and at par, such  additional participation in the Applicable Debt (except as to Swing Loans and Letters of Credit  prior to the Administrative Agent’s giving of notice to participate and amounts under Article III  hereof  and  further  excluding  any  Indebtedness  under  any  Hedge  Agreement  or  Bank  Product  Agreement) as shall be necessary to nullify the Advantage.  Each Term Lender agrees with the  other  Term  Lenders  that,  if  it  at  any  time  shall  obtain  any  Advantage  over  the  other  Term  Lenders, or any thereof, in respect of the Applicable Debt (except as to amounts under Article III  hereof  and  further  excluding  any  Hedge  Agreement  or  Bank  Product  Agreement),  such  Term  Lender  shall  purchase  from  the  other  Term  Lenders,  for  cash  and  at  par,  such  additional                                          90  





 






   participation in the Applicable Debt (except as to amounts under Article III hereof and further  excluding any Indebtedness under any Hedge Agreement or Bank Product Agreement) as shall  be necessary to nullify the Advantage.            (b)   Equalization  Between  Commitments  After  an  Equalization  Event.   After  the  occurrence  of  an  Equalization  Event,  each  Lender  agrees  with  the  other  Lenders  that,  if  such  Lender at any time shall obtain any Advantage over the other Lenders or any thereof determined  in  respect  of  the  Obligations  (including  Swing  Loans  and  Letters  of  Credit  but  excluding  amounts  under  Article  III  hereof  and  further  excluding  any  Indebtedness  under  any  Hedge  Agreement or Bank Product Agreement) then outstanding, such Lender shall purchase from the  other Lenders, for cash and at par, such additional participation in the Obligations (excluding any  Indebtedness under any Hedge Agreement or Bank Product Agreement) as shall be necessary to  nullify the Advantage in respect of the Obligations.  For purposes of determining whether or not,  after  the  occurrence  of  an  Equalization  Event,  an  Advantage  in  respect  of  the  Obligations  (excluding  any  Indebtedness  under  any  Hedge  Agreement  or  Bank  Product  Agreement)  shall  exist, the Administrative Agent shall, as of the date that the Equalization Event occurs:                (i)  add  the  Revolving  Credit  Exposure  and  the  Term  Loan  Exposure  to        determine  the  equalization  maximum  amount  (the  “Equalization  Maximum  Amount”);        and                (ii)  determine an equalization percentage (the “Equalization Percentage”) for        each  Lender  by  dividing  the  aggregate  amount  of  its  Lender  Credit  Exposure  by  the        Equalization Maximum Amount.                After the date of an Equalization Event, the Administrative Agent shall  determine whether an  Advantage exists among the Lenders by using the Equalization Percentage.  Such determination  shall be conclusive absent manifest error.          (c)   Recovery  of  Amount.   If  any  such  Advantage  resulting  in  the  purchase  of  an  additional participation as set forth in subsection (a) or (b) hereof shall be recovered in whole or  in part from the Lender receiving the Advantage, each such purchase shall be rescinded, and the  purchase  price  restored  (but  without  interest  unless  the  Lender  receiving  the  Advantage  is  required  to  pay  interest  on  the  Advantage  to  the  Person  recovering  the  Advantage  from  such  Lender) ratably to the extent of the recovery.          (d)   Application and Sharing of Set-Off Amounts.  Each  Lender  further agrees with  the  other  Lenders  that,  if  it  at  any  time  shall  receive  any  payment  for  or  on  behalf  of  the  Borrower on any Indebtedness (other than, prior to the exercise by the Administrative Agent or  the  Required  Lenders  of  remedies  under  this  Agreement,  any  Indebtedness  under  any  Hedge  Agreement  or  Bank  Product  Agreement)  owing  by  the  Borrower  to  that  Lender  (whether  by  voluntary  payment,  by  realization  upon  security,  by  reason  of  offset  of  any  deposit  or  other  Indebtedness,  by  counterclaim  or  cross  action,  by  enforcement  of  any  right  under  any  Loan  Document, or otherwise), it shall apply such payment first to any and all Obligations owing by  the  Borrower  to  that  Lender  pursuant  to  this  Agreement  (including,  without  limitation,  any  participation purchased or to be purchased pursuant to this Section 9.5 or any other section of                                          91  





 






   this Agreement).  Each Credit Party agrees that any Lender so purchasing a participation from  the other Lenders, or any thereof, pursuant to this Section 9.5 may exercise all of its rights of  payment  (including  the  right  of  set-off)  with  respect  to  such  participation  as  fully  as  if  such  Lender were a direct creditor of such Credit Party in the amount of such participation.          Section 9.6.  Collateral.  The Administrative Agent and the Lenders shall at all times have  the  rights  and  remedies  of  a  secured  party  under  the  U.C.C.,  in  addition  to  the  rights  and  remedies  of  a  secured  party  provided  elsewhere  within  this  Agreement,  in  any  other  Related  Writing executed by the Borrower or otherwise provided in law or equity (subject to the receipt  of  any  consents  or  approvals  that  may  be  required  from  a Governmental  Authority  before the  Administrative Agent may exercise certain rights in the Event of Default).  Upon the occurrence  and  during  the  continuance  of  an  Event  of  Default  and  at  all  times  thereafter,  (a)  the  Administrative Agent may require the Borrower to assemble the collateral securing the Secured  Obligations, which the Borrower agrees to do, and make it available to the Administrative Agent  and the Lenders at a reasonably convenient place to be designated by the Administrative Agent,  and (b) the Administrative Agent may, with or without notice to or demand upon the Borrower  and with or without the aid of legal process, make use of such force as may be necessary to enter  any premises where such collateral, or any thereof, may be found and to take possession thereof  (including  anything  found  in  or  on  such  collateral  that  is  not  specifically  described  in  this  Agreement, each of which findings shall be considered to be an accession to and a part of such  collateral)  and  for  that  purpose  may  pursue  such  collateral  wherever  the  same  may  be  found,  without liability for trespass or damage caused thereby to the Borrower.  After any delivery or  taking of possession of the collateral securing the Secured Obligations, or any portion thereof,  pursuant to this Agreement, then, with or without resort to the Borrower personally or any other  Person or property, all of which the Borrower hereby waives, and upon such terms and in such  manner  as  the  Administrative  Agent  may  deem  advisable,  the  Administrative  Agent,  in  its  discretion, may sell, assign, transfer and deliver any of such collateral at any time, or from time  to time.  No prior notice need be given to the Borrower or to any other Person in the case of any  sale  of  such  collateral  that  the  Administrative  Agent  determines  to  be  perishable  or  to  be  declining speedily in value or that is customarily sold in any recognized market, but in any other  case the Administrative Agent shall give the Borrower not fewer than ten (10) days prior notice  of either the time and place of any public sale of such collateral or of the time after which any  private  sale  or  other  intended  disposition  thereof  is  to  be  made.   The  Borrower  waives  advertisement of any such sale and (except to the extent specifically required by the preceding  sentence) waives notice of any kind in respect of any such sale.  At  any such public sale, the  Administrative Agent or the Lenders may purchase such collateral, or any part thereof, free from  any  right  of  redemption,  all  of  which  rights  the  Borrower  hereby  waives  and  releases.   After  deducting  all  Related  Expenses,  and  after  paying  all  claims,  if  any,  secured  by  Liens  having  precedence over this Agreement, the Administrative Agent may apply the net proceeds of each  such sale to or toward the payment of the Secured Obligations, whether or not then due, in such  order  and  by  such  division  as  the  Administrative  Agent,  in  its  sole  discretion,  may  deem  advisable.  Any excess, to the extent permitted by law, shall be paid to the Borrower, and the  Borrower shall remain liable for any deficiency.          Section 9.7.  Other Remedies.  The remedies in this Article IX are in addition to, and not  in  limitation  of,  any  other  right,  power,  privilege,  or  remedy,  either  in  law,  in  equity,  or                                          92  





 






   otherwise, to which the Lenders may be entitled.  The Administrative Agent shall exercise the  rights  under  this  Article  IX  and  all  other  collection  efforts  on  behalf  of  the  Lenders  and  no  Lender shall act independently with respect thereto, except as otherwise specifically set forth in  this  Agreement.   In  addition,  the  Administrative  Agent  shall  be  entitled  to  exercise  remedies,  pursuant to the Loan Documents, against collateral securing the Secured Obligations, on behalf  of any affiliate of a Lender that holds Secured Obligations, and no affiliate of a Lender shall act  independently with respect thereto, except as otherwise specifically set forth in this Agreement.          Section 9.8.  Application of Proceeds.          (a)   Payments  Prior  to  Exercise  of  Remedies.   Prior  to  the  exercise  by  the  Administrative Agent, on behalf of the Lenders, of remedies under this Agreement or the other  Loan  Documents,  all  monies  received  by  the  Administrative  Agent  shall  be  applied,  unless  otherwise required by the terms of the other Loan Documents or by applicable law, as follows  (provided that the Administrative Agent shall have the right at all times to apply any payment  received from the Borrower first to the payment of all obligations (to the extent not paid by the  Borrower) incurred by the Administrative Agent pursuant to Sections 11.5 and 11.6 hereof and to  the payment of Related Expenses to the Administrative Agent):                  (i)  with respect to payments received in connection with the Revolving Credit        Commitment, to the Revolving Lenders;                (ii)  with  respect  to  payments  received  in  connection  with  the  Term  Loan        Commitment, to the Term Lenders; and                      (iii)  with respect to payments received in connection with an Additional Term        Loan Facility, to the applicable Lenders.          (b)   Payments  Subsequent  to  Exercise  of  Remedies.   After  the  exercise  by  the  Administrative  Agent  or  the  Required  Lenders  of  remedies  under  this  Agreement  or  the other  Loan  Documents,  all  monies  received  by  the  Administrative  Agent  shall  be  applied,  unless  otherwise required by the terms of the other Loan Documents or by applicable law, as follows:                (i)  first, to the payment of all costs, expenses and other amounts (to the extent        not paid by the Borrower) incurred by the Administrative Agent pursuant to Sections 11.5        and 11.6 hereof and to the payment of Related Expenses to the Administrative Agent;                      (ii)  second, to the payment pro rata of (A) interest then accrued and payable        on the outstanding Loans, (B) any fees then accrued and payable to the Administrative        Agent, (C) any fees then accrued and payable to the Issuing Lender or the holders of the        Letter  of  Credit  Commitment  in  respect  of  the  Letter  of  Credit  Exposure,  (D)  any        commitment fees, amendment fees and similar fees shared pro rata among the Lenders        entitled thereto under this Agreement that are then accrued and payable, and (E) to the        extent not paid by the Borrower, to the obligations incurred by the Lenders (other than        the Administrative Agent) pursuant to Sections 11.5 and 11.6 hereof;                                                  93  





 






               (iii)  third, for payment of (A) principal outstanding on the Loans and the Letter        of Credit Exposure, on a pro rata basis to the Lenders, based upon each such  Lender’s        Overall  Commitment  Percentage,  provided  that  the  amounts  payable  in  respect  of  the        Letter  of  Credit  Exposure  shall  be  held  and  applied  by  the  Administrative  Agent  as        security for the reimbursement obligations in respect thereof, and, if any Letter of Credit        shall expire without being drawn, then the amount with respect to such Letter of Credit        shall  be  distributed  to  the  Lenders,  on  a pro  rata  basis  in  accordance with  this  subpart        (iii), (B) the Indebtedness under any Hedge Agreement with a Lender (or an entity that is        an affiliate of a then existing Lender), such amount to be based upon the net termination        obligation  of  the  Borrower  under  such  Hedge  Agreement,  and  (C)  the  Bank  Product        Obligations owing to a Lender (or an entity that is an affiliate of a then existing Lender)        under Bank Product Agreements; with such payment to be pro rata among (A), (B) and        (C) of this subpart (iii);                       (iv)  fourth, to any remaining Secured Obligations; and                      (v)   finally,  any  remaining  surplus  after  all  of  the  Secured  Obligations  have        been paid in full, to the Borrower or to whomsoever shall be lawfully entitled thereto.    Each  Lender  hereby  agrees  to  promptly  provide  all  information  reasonably  requested  by  the  Administrative Agent regarding any Bank Product Obligations owing to such Lender (or affiliate  of  such  Lender)  or  any  Hedge  Agreement  entered  into  by  a  Company  with  such  Lender  (or  affiliate  of  such  Lender),  and  each  such  Lender,  on  behalf  of  itself  and  any  of  its  affiliates,  hereby agrees to promptly provide notice to the Administrative Agent upon such Lender (or any  of  its  affiliates)  entering  into  any  such  Hedge  Agreement  or  cash  management  services  agreement.                        ARTICLE X.  THE ADMINISTRATIVE AGENT                                                 The  Lenders  authorize  KeyBank  and  KeyBank  hereby  agrees  to  act  as  agent  for  the  Lenders in respect of this Agreement upon the terms and conditions set forth elsewhere in this  Agreement, and upon the following terms and conditions:          Section 10.1.  Appointment and Authorization.            (a)   General.   Each  Lender  hereby  irrevocably  appoints  and  authorizes  the  Administrative  Agent  to  take  such  action  as  agent  on  its  behalf  and  to  exercise  such  powers  hereunder as are delegated to the Administrative Agent by the terms hereof, together with such  powers  as  are  reasonably  incidental  thereto.   Neither  the  Administrative  Agent  nor  any  of  its  affiliates, directors, officers, attorneys or  employees shall  (a) be liable for any  action taken or  omitted to be taken by it or them hereunder or in connection herewith, except for its or their own  gross negligence or willful misconduct (as determined by a final non-appealable judgment of a  court of competent jurisdiction), or be responsible in any manner to any of the Lenders for the  effectiveness,  enforceability,  genuineness,  validity  or  due  execution  of  this  Agreement  or  any  other Loan Documents, (b) be under any obligation to any Lender to ascertain or to inquire as to                                          94  





 






   the performance or observance of any of the terms, covenants or conditions hereof or thereof on  the part of the Borrower or any other Company, or the financial condition of the Borrower or any  other  Company,  or  (c)  be  liable to  any  of the Companies  for  consequential  damages  resulting  from  any  breach  of  contract,  tort  or  other  wrong  in  connection  with  the  negotiation,  documentation, administration or collection of the Loans or Letters of Credit or any of the Loan  Documents.  Notwithstanding any provision to the contrary contained in this  Agreement or in  any other  Loan  Document, the Administrative Agent shall not  have any  duty or responsibility  except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to  have  any  fiduciary  relationship  with  any  Lender  or  participant,  and  no  implied  covenants,  functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or  any other Loan Document or otherwise exist against the Administrative Agent.  Without limiting  the generality of the foregoing sentence, the use of the term “agent” herein and in other Loan  Documents with reference to the Administrative Agent is not intended to connote any fiduciary  or  other implied  (or express) obligations  arising  under agency  doctrine  of  any  applicable  law.   Instead,  such  term  is  used  merely  as  a  matter  of  market  custom,  and  is  intended  to  create  or  reflect only an administrative relationship between independent contracting parties.          (b)   Bank  Products  and  Hedging  Products.   Each  Lender  that  is  providing  Bank  Products or products in connection with a Hedge Agreement (or whose affiliate is providing such  products) hereby irrevocably authorizes the Administrative Agent to take such action as agent on  its  behalf  (and  its  affiliate’s  behalf)  with  respect  to  the  collateral  securing  the  Secured  Obligations and the realization of payments with respect thereto pursuant to Section 9.8(b)(iii)  hereof.   The  Borrower  and  each  Lender  agree  that  the  indemnification  and  reimbursement  provisions  of  this  Agreement  shall  be  equally  applicable  to  the  actions  of  the  Administrative  Agent  pursuant  to  this  subsection  (b).   Each  Lender  hereby  represents  and  warrants  to  the  Administrative Agent that it has the authority to authorize the Administrative Agent as set forth  above.          Section 10.2.  Note Holders.  The Administrative Agent may treat the payee of any Note  as the holder thereof (or, if there is no Note, the holder of the interest as reflected on the books  and  records  of the Administrative  Agent)  until  written  notice of  transfer  shall  have  been  filed  with  the  Administrative  Agent,  signed  by  such  payee  and  in  form  satisfactory  to  the  Administrative Agent.          Section 10.3.  Consultation With Counsel.  The Administrative Agent may consult with  legal counsel selected by the Administrative Agent and shall not be liable for any action taken or  suffered  in  good  faith  by  the  Administrative  Agent  in  accordance  with  the  opinion  of  such  counsel, in the absence of gross negligence or willful misconduct, as determined by a final and  non-appealable judgment of a court of competent jurisdiction.          Section  10.4.   Documents.   The  Administrative  Agent  shall  not  be  under  any  duty  to  examine  into  or  pass  upon  the  validity,  effectiveness,  genuineness  or  value  of  any  Loan  Document or any other Related Writing furnished pursuant hereto or in connection herewith or  the value of any collateral obtained hereunder, and the Administrative Agent shall be entitled to  assume that the same are valid, effective and genuine and what they purport to be.                                            95  





 






         Section 10.5.  Administrative Agent and Affiliates.  KeyBank and its affiliates may make  loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in  and  generally  engage  in  any  kind  of  banking,  trust,  financial  advisory,  underwriting  or  other  business  with  the  Companies  and  Affiliates  as  though  KeyBank  were  not  the  Administrative  Agent hereunder and without notice to or consent of any  Lender.  Each Lender acknowledges  that, pursuant to such activities, KeyBank or its affiliates may receive information regarding any  Company  or  any  Affiliate  (including  information  that  may  be  subject  to  confidentiality  obligations in favor of such Company or such Affiliate) and acknowledge that the Administrative  Agent shall be under no obligation to provide such information to other Lenders.  With respect to  Loans and Letters of Credit (if any), KeyBank and its affiliates shall have the same rights and  powers  under  this  Agreement  as  any  other  Lender  and  may  exercise  the  same  as  though  KeyBank  were  not  the  Administrative  Agent,  and  the  terms  “Lender”  and  “Lenders”  include  KeyBank and its affiliates, to the extent applicable, in their individual capacities.          Section 10.6.  Knowledge or Notice of Default.  The Administrative Agent shall not be  deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless  the Administrative Agent has received written notice from a Lender or the Borrower referring to  this  Agreement,  describing  such  Default  or  Event  of  Default  and  stating  that  such  notice  is  a  “notice  of  default”.   In  the  event  that  the  Administrative  Agent  receives  such  a  notice,  the  Administrative Agent shall give notice thereof to the Lenders.  The Administrative Agent shall  take such action with respect to such Default or Event of Default as shall be reasonably directed  by  the  Required  Lenders  (or,  if  so  specified  by  this  Agreement,  all  Lenders);  provided  that,  unless and until the Administrative Agent shall have received such directions, the Administrative  Agent may (but shall not be obligated to) take such action, or refrain from taking such action,  with respect to such Default or Event of Default as it shall deem advisable, in its discretion, for  the protection of the interests of the Lenders.          Section 10.7.  Action by Administrative Agent.  Subject to the other terms and conditions  hereof, so long as the Administrative Agent shall be entitled, pursuant to Section 10.6 hereof, to  assume  that  no  Default  or  Event  of  Default  shall  have  occurred  and  be  continuing,  the  Administrative Agent shall be entitled to use its reasonable discretion with respect to exercising  or refraining from exercising any rights that may be vested in it by, or with respect to taking or  refraining from taking any action or actions that it may be able to take under or in respect of, this  Agreement.   The  Administrative  Agent  shall  incur  no  liability  under  or  in  respect  of  this  Agreement by acting upon any notice, certificate, warranty or other paper or instrument believed  by it to be genuine or authentic or to be signed by the proper party or parties, or with respect to  anything that it may do or refrain from doing in the reasonable exercise of its judgment, or that  may seem to it to be necessary or desirable in the premises.  Without limiting the foregoing, no  Lender shall have any right of action whatsoever against the Administrative Agent as a result of  the  Administrative  Agent’s  acting  or  refraining  from  acting  hereunder  in  accordance  with  the  instructions of the Required Lenders.          Section 10.8.  Release of Collateral or Guarantor of Payment.  In the event of a merger,  transfer  of  assets  or  other  transaction  permitted  pursuant  to  Section  5.12  hereof  (or  otherwise  permitted  pursuant  to  this  Agreement)  where  the  proceeds  of  such  merger,  transfer  or  other  transaction are applied in accordance with the terms of this Agreement to the extent required to                                          96  





 






   be so applied, or in the event of a merger, consolidation, dissolution or similar event, permitted  pursuant  to  this  Agreement,  the  Administrative  Agent,  at  the  request  and  expense  of  the  Borrower,  is  hereby  authorized  by  the  Lenders  to  (a)  release  the  relevant  Collateral  from  this  Agreement or any other Loan Document, (b) release a Guarantor of Payment in connection with  such permitted transfer or event, and (c) duly assign, transfer and deliver to the affected Person  (without recourse and without any representation or warranty) such Collateral as is then (or has  been) so transferred or released and as may be in the possession of the Administrative Agent and  has not theretofore been released pursuant to this Agreement.          Section 10.9.  Delegation of Duties.  The Administrative Agent may execute any of its  duties under this Agreement or any other  Loan  Document by or through agents, employees or  attorneys-in-fact  and  shall  be  entitled  to  advice  of  counsel  and  other  consultants  or  experts  concerning  all  matters  pertaining  to  such  duties.   The  Administrative  Agent  shall  not  be  responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the  absence of gross negligence or willful misconduct, as determined by a final and non-appealable  judgment of a court of competent jurisdiction.          Section  10.10.   Indemnification  of  Administrative  Agent.   The  Lenders  agree  to  indemnify  the  Administrative  Agent  (to  the  extent  not  reimbursed  by  the  Borrower)  ratably,  according  to  their  respective  Overall  Commitment  Percentages,  from  and  against  any  and  all  liabilities,  obligations,  losses,  damages,  penalties,  actions,  judgments,  suits,  costs,  expenses  (including  reasonable  attorneys’  fees  and  expenses)  or  disbursements  of  any  kind  or  nature  whatsoever that may be imposed on, incurred by or asserted against the Administrative Agent in  its capacity as agent in any way relating to or arising out of this Agreement or any other Loan  Document,  or  any  action  taken  or  omitted  by  the  Administrative  Agent  with  respect  to  this  Agreement or any other Loan Document, provided that no Lender shall be liable for any portion  of  such  liabilities,  obligations,  losses,  damages,  penalties,  actions,  judgments,  suits,  costs,  expenses (including reasonable attorneys’ fees and expenses) or disbursements resulting from the  Administrative  Agent’s  gross  negligence  or  willful  misconduct,  as  determined  by  a  final  and  non-appealable  judgment  of  a  court  of  competent  jurisdiction,  or  from  any  action  taken  or  omitted by the Administrative Agent in any capacity other than as agent under this Agreement or  any other Loan Document.  No action taken in accordance with the directions of the Required  Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this  Section  10.10.   The  undertaking  in  this  Section  10.10  shall  survive  repayment  of  the  Loans,  cancellation of the Notes, if any, expiration or termination of the Letters of Credit, termination of  the Commitment, any foreclosure under, or modification, release or discharge of, any or all of  the Loan Documents, termination of this Agreement and the resignation or replacement of the  agent.          Section 10.11.  Successor Administrative Agent.  The Administrative Agent may resign  as agent hereunder by giving not fewer than thirty (30) days prior written notice to the Borrower  and the Lenders.  If the Administrative Agent shall resign under this Agreement, then either (a)  the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders  (with  the  consent  of  the  Borrower  so  long  as  an  Event  of  Default  does  not  exist  and  which  consent shall not be unreasonably withheld), or (b) if a successor agent shall not be so appointed  and approved within the thirty (30) day period following the Administrative Agent’s notice to the                                          97  





 






   Lenders  of  its  resignation,  then  the  Administrative  Agent  shall  appoint  a  successor  agent  that  shall serve as agent until  such  time as the Required  Lenders appoint a successor agent.   If no  successor agent has accepted appointment as the Administrative Agent by the date that is thirty  (30)  days  following  a  retiring  Administrative  Agent’s  notice  of  resignation,  the  retiring  Administrative  Agent’s  resignation  shall  nevertheless  thereupon  become  effective,  and  the  Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until  such  time,  if  any,  as  the  Required  Lenders  appoint  a  successor  agent  as  provided  for  above.   Upon  its  appointment,  such  successor  agent  shall  succeed  to  the  rights,  powers  and  duties  as  agent,  and  the  term  “Administrative  Agent”  means  such  successor  effective  upon  its  appointment,  and  the  former  agent’s  rights,  powers  and  duties  as  agent  shall  be  terminated  without any other or further act or deed on the part of such former agent or any of the parties to  this  Agreement.   After  any  retiring  Administrative  Agent’s  resignation  as  the  Administrative  Agent, the provisions of this Article X shall inure to its benefit as to any actions taken or omitted  to be taken by it while it was the Administrative Agent under this Agreement and the other Loan  Documents.          Section 10.12.  Issuing Lender.  The Issuing Lender shall act on behalf of the Revolving  Lenders with respect to any Letters of Credit issued by the Issuing Lender and the documents  associated  therewith.   The  Issuing  Lender  shall  have  all  of  the  benefits  and  immunities  (a)  provided  to  the  Administrative  Agent  in  this  Article  X  with  respect  to  any  acts  taken  or  omissions  suffered  by  the  Issuing  Lender  in  connection  with  the  Letters  of  Credit  and  the  applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if  the  term  “Administrative  Agent”,  as  used  in  this  Article  X,  included  the  Issuing  Lender  with  respect to such acts or omissions, and (b) as additionally provided in this Agreement with respect  to the Issuing Lender.          Section 10.13.  Swing Line Lender.  The Swing Line Lender shall act on behalf of the  Revolving Lenders with respect to any Swing Loans.  The Swing Line Lender shall have all of  the  benefits  and  immunities  (a)  provided  to  the  Administrative  Agent  in  this  Article  X  with  respect to any acts taken or omissions suffered by the Swing Line Lender in connection with the  Swing Loans as fully as if the term “Administrative Agent”, as used in this Article X, included  the Swing Line Lender with respect to such acts or omissions, and (b) as additionally provided in  this Agreement with respect to the Swing Line Lender.          Section 10.14.  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  Credit  Party,  (a)  the  Administrative Agent (irrespective of whether the principal of any Loan shall then be due and  payable  as  herein  expressed  or  by  declaration  or  otherwise  and  irrespective  of  whether  the  Administrative  Agent  shall  have  made  any  demand  on  the  Borrower)  shall  be  entitled  and  empowered, by intervention in such proceeding or otherwise, to (i) file and prove a claim for the  whole  amount  of  the  principal  and  interest  owing  and  unpaid  in  respect  of  the  Loans,  and  all  other  Obligations  that  are  owing  and  unpaid  and  to  file  such  other  documents  as  may  be  necessary or advisable in order to have the claims of the Lenders and the Administrative Agent  (including any claim for the reasonable compensation, expenses, disbursements and advances of  the Lenders and the Administrative Agent and their respective agents and counsel and all other                                          98  





 






   amounts due the  Lenders and the Administrative Agent) allowed in such judicial proceedings,  and  (ii)  collect  and  receive  any  monies  or  other  property  payable  or  deliverable  on  any  such  claims and to distribute the same; and (b) any custodian, receiver, assignee, trustee, liquidator,  sequestrator or other similar official in any such judicial proceeding is hereby authorized by each  Lender  to  make  such  payments  to  the  Administrative  Agent  and,  in  the  event  that  the  Administrative Agent shall consent to the making of such payments directly to the Lenders, to  pay  to  the  Administrative  Agent  any  amount  due  for  the  reasonable  compensation,  expenses,  disbursements  and  advances  of  the  Administrative  Agent  and  its  agents  and  counsel,  and  any  other  amounts  due  the  Administrative  Agent.   Nothing  contained  herein  shall  be  deemed  to  authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any  Lender  any  plan  of  reorganization,  arrangement,  adjustment  or  composition  affecting  the  Obligations  or  the  rights  of  any  Lender  or  to  authorize  the  Administrative  Agent  to  vote  in  respect of the claim of any Lender in any such proceeding.          Section 10.15.  No Reliance on Administrative Agent’s Customer Identification Program.   Each  Lender  acknowledges  and  agrees  that  neither  such  Lender,  nor  any  of  its  affiliates,  participants or assignees, may rely on the Administrative Agent to carry out such Lender’s or its  affiliate’s,  participant’s  or  assignee’s  customer  identification  program,  or  other  obligations  required or imposed under or pursuant to the Patriot Act or the regulations thereunder, including  the  regulations  contained  in  31  CFR  103.121  (as  hereafter  amended  or  replaced,  the  “CIP  Regulations”),  or  any  other  anti-terrorism  law,  including  any  programs  involving  any  of  the  following items relating to or in connection with the Borrower, its Affiliates or agents, the Loan  Documents or the transactions hereunder: (a) any identity verification procedures, (b) any record  keeping, (c) any comparisons with government lists, (d) any customer notices or (e) any other  procedures required under the CIP Regulations or such other laws.          Section 10.16.  Other Agents.  The Administrative Agent shall have the continuing right,  in consultation with the Borrower, from time to time to designate one or more Lenders (or its or  their  affiliates)  as  “syndication  agent”,  “co-syndication  agent”,  “documentation  agent”,  “co- documentation agent”, “book runner”, “lead arranger”, “joint lead arranger”, “arrangers” or other  designations for purposes hereof.  Any such designation referenced in the previous sentence or  listed on the cover of this Agreement shall have no substantive effect, and any such Lender and  its  affiliates  so  referenced  or  listed  shall  have  no  additional  powers,  duties,  responsibilities  or  liabilities as a result thereof, except in its capacity, as applicable, as the Administrative Agent, a  Lender, the Swing Line Lender or the Issuing Lender hereunder.                              ARTICLE XI.  MISCELLANEOUS                                                 Section 11.1.  Lenders’ Independent Investigation.  Each Lender, by its signature to this  Agreement, acknowledges and agrees that the Administrative Agent has made no representation  or warranty, express or implied, with respect to the creditworthiness, financial condition, or any  other condition of any Company or with respect to the statements contained in any information  memorandum furnished  in connection herewith  or in any other oral or  written communication  between the Administrative Agent and such Lender.  Each Lender represents that it has made and  shall  continue  to  make  its  own  independent  investigation  of  the  creditworthiness,  financial                                          99  





 






   condition and affairs of the Companies in connection with the extension of credit hereunder, and  agrees  that  the  Administrative  Agent  has  no  duty  or  responsibility,  either  initially  or  on  a  continuing basis, to provide any Lender with any credit or other information with respect thereto  (other than such notices as may be expressly required to be given by the Administrative Agent to  the  Lenders  hereunder),  whether  coming  into  its  possession  before  the  first  Credit  Event  hereunder or at any time or times thereafter.  Each Lender further represents that it has reviewed  each of the Loan Documents.          Section 11.2.  No Waiver; Cumulative Remedies.  No omission or course of dealing on  the part of the Administrative Agent,  any  Lender or the holder of any  Note (or, if there is no  Note,  the  holder  of  the  interest  as  reflected  on  the  books  and  records  of  the  Administrative  Agent)  in  exercising  any  right,  power  or  remedy  hereunder  or  under  any  of  the  other  Loan  Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any such  right, power or remedy preclude any other or further exercise thereof or the exercise of any other  right, power or remedy hereunder or under any of the Loan Documents.  The remedies herein  provided are cumulative and in addition to any other rights, powers or privileges held under any  of the Loan Documents or by operation of law, by contract or otherwise.          Section 11.3.  Amendments, Waivers and Consents.            (a)   General  Rule.   No  amendment,  modification,  termination,  or  waiver  of  any  provision of any Loan Document nor consent to any variance therefrom (other than pursuant to  Section 2.10(b) and (c) hereof), shall be effective unless the same shall be in writing and signed  by the Required Lenders and, other than with respect to waivers and consents, the Borrower, and  then such waiver or consent shall be effective only in the specific instance and for the specific  purpose for which given.          (b)   Exceptions to the General Rule.  Notwithstanding the provisions of subsection (a)  above, but subject to the provisions of Section 2.10(b) and (c) hereof:                       (i)  Consent  of  Affected  Lenders  Required.   No  amendment,  modification,        waiver or consent shall  (A) extend or increase the Commitment of any Lender without        the  written  consent  of  such  Lender,  (B)  extend  the  date  scheduled  for  payment  of  any        principal  (excluding  mandatory  prepayments)  of  or  interest  on  the  Loans  or  Letter  of        Credit  reimbursement  obligations  or  commitment  fees  payable  hereunder  without  the        written consent of each Lender directly affected thereby, (C) reduce the principal amount        of any Loan, the stated rate of interest thereon (provided that the institution of the Default        Rate or post default interest and a subsequent removal of the Default Rate or post default        interest shall not constitute a decrease in interest rate pursuant to this Section 11.3(b)) or        the stated rate of commitment fees payable hereunder, without the consent of each Lender        directly affected thereby, (D) change the manner of the application of any payments made        by the Borrower to the Lenders hereunder, without the consent of each Lender directly        affected  thereby,  (E)  without  the  unanimous  consent  of  the  Lenders,  change  any        percentage voting requirement, voting rights, or the Required Lenders definition in this        Agreement, (F) without the unanimous consent of the Lenders, release the Borrower or        any  Guarantor  of  Payment  or  release  or  subordinate  any  material  amount  of  collateral                                         100  





 






         securing  the  Secured  Obligations,  except  in  connection  with  a  transaction  specifically        permitted  hereunder,  (G)  without  the  unanimous  consent  of  the  Lenders,  amend  this        Section 11.3 or Section 9.5 or 9.8 hereof, or (H) without the unanimous consent of the        Lenders, permit the Borrower to assign its rights hereunder or any interest herein.                      (ii)  Provisions  Relating  to  Special  Rights  and  Duties.   No  provision  of  this        Agreement affecting the Administrative Agent in its capacity as such shall be amended,        modified or waived without the consent of the Administrative Agent.  The Administrative        Agent  Fee  Letter  may  be  amended  or  modified  by  the  Administrative  Agent  and  the        Borrower  without  the  consent  of  any  other  Lender.   No  provision  of  this  Agreement        relating  to  the  rights  or  duties  of  the  Issuing  Lender  in  its  capacity  as  such  shall  be        amended, modified or waived without the consent of the Issuing Lender. No provision of        this Agreement relating to the rights or duties of the Swing Line Lender in its capacity as        such  shall  be  amended,  modified  or  waived  without  the  consent  of  the  Swing  Line        Lender.                      (iii)  Technical and Conforming Modifications.  Notwithstanding the foregoing,        technical and conforming modifications to the Loan Documents may be made with the        consent of the Borrower and the Administrative Agent (A) if such modifications are not        adverse to the Lenders and are requested by Governmental Authorities, (B) to cure any        ambiguity,  defect  or  inconsistency,  or  (C)  to  the  extent  necessary  to  integrate  any        increase in the Commitment or new Loans pursuant to Section 2.10(b) hereof.          (c)   Replacement  of  Non-Consenting  Lender.   If,  in  connection  with  any  proposed  amendment,  waiver  or consent  hereunder,  the  consent  of  all  Lenders  is  required,  but  only  the  consent of Required Lenders is obtained, (any Lender withholding consent as described in this  subsection  (c)  being  referred  to  as  a  “Non-Consenting  Lender”),  then,  so  long  as  the  Administrative  Agent  is  not  the  Non-Consenting  Lender,  the  Administrative  Agent  may  (and  shall, if requested by the Borrower), at the sole expense of the Borrower, upon notice to such  Non-Consenting Lender and the Borrower, require such Non-Consenting Lender to assign and  delegate, without recourse (in accordance with the restrictions contained in Section 11.10 hereof)  all  of  its  interests,  rights  and  obligations  under  this  Agreement  to  a  financial  institution  acceptable  to  the  Administrative  Agent  and  the  Borrower  that  shall  assume  such  obligations  (which  assignee  may  be  another  Lender,  if  a  Lender  accepts  such  assignment);  provided  that  such Non-Consenting Lender shall have received payment of an amount equal to the outstanding  principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it  hereunder,  from  such  financial  institution  (to  the  extent  of  such  outstanding  principal  and  accrued  interest  and  fees)  or  the  Borrower  (in  the  case  of  all  other  amounts,  including  any  breakage compensation under Article III hereof).          (d)   Generally.   Notice  of  amendments,  waivers  or  consents  ratified  by  the  Lenders  hereunder shall be forwarded by the Administrative Agent to all of the Lenders.  Each Lender or  other holder of a Note, or if there is no Note, the holder of the interest as reflected on the books  and  records  of the Administrative Agent  (or interest  in  any  Loan  or  Letter of  Credit)  shall  be  bound  by  any  amendment,  waiver  or  consent  obtained  as  authorized  by  this  Section  11.3,  regardless of its failure to agree thereto.                                         101  





 






           Section  11.4.   Notices.   All  notices,  requests,  demands  and  other  communications  provided  for  hereunder  shall  be  in  writing  and,  if  to  the  Borrower,  mailed  or  delivered  to  it,  addressed  to  it  at  the  address  specified  on  the  signature  pages  of  this  Agreement,  if  to  the  Administrative  Agent  or  a  Lender,  mailed  or  delivered  to  it,  addressed  to  the  address  of  the  Administrative Agent or such Lender specified on the signature pages of this Agreement, or, as  to each party, at such other address as shall be designated by such party in a written notice to  each of the other parties.  All notices, statements, requests, demands and other communications  provided for hereunder shall be deemed to be given or made when delivered (if received during  normal  business  hours  on  a  Business  Day,  such  Business  Day  or  otherwise  the  following  Business Day), or two Business Days after being deposited in the mails with postage prepaid by  registered  or  certified  mail,  addressed  as  aforesaid,  or  sent  by  facsimile  or  electronic  communication,  in  each  case  of  facsimile  or  electronic  communication  with  telephonic  confirmation  of  receipt.   All  notices  pursuant  to  any  of  the  provisions  hereof  shall  not  be  effective  until  received.   For  purposes  of  Article  II  hereof,  the  Administrative  Agent  shall  be  entitled to rely on telephonic instructions from any person that the Administrative Agent in good  faith believes is an Authorized Officer, and the  Borrower shall  hold the Administrative Agent  and each Lender harmless from any loss, cost or expense resulting from any such reliance.          Section 11.5.  Costs, Expenses and Documentary Taxes.  The Borrower agrees to pay on  demand  all  reasonable  out-of-pocket  costs  and  expenses  of  the  Administrative  Agent  and  all  Related Expenses, including but not limited to (a) reasonable syndication, administration, travel  and  out-of-pocket  expenses,  including  but  not  limited  to  properly  documented  attorneys’  fees  and expenses, of the Administrative Agent in connection with the preparation, negotiation and  closing  of  the  Loan  Documents  and  the  administration  of  the  Loan  Documents,  and  the  collection and disbursement of all funds hereunder and the other instruments and documents to  be delivered hereunder, and (b) the reasonable and actual fees and expenses of special counsel  for the Administrative Agent, with respect  to the foregoing, and of local  counsel, if any,  who  may be retained by said special counsel with respect thereto.  The Borrower also agrees to pay on  demand all out-of-pocket costs and expenses (including Related Expenses) of the Administrative  Agent  and  the  Lenders,  including  reasonable  and  actual  attorneys’  fees  and  expenses,  in  connection with the restructuring, amendment or enforcement of the Obligations, this Agreement  or  any  other  Related  Writing.   In  addition,  the  Borrower  shall  pay  any  and  all  properly  documented stamp, transfer, documentary and other similar taxes, assessments, charges and fees  payable or determined to be payable in connection with the execution and delivery of the Loan  Documents, and the other instruments and documents to be delivered hereunder, and agrees to  hold the Administrative Agent and each Lender harmless from and against any and all liabilities  with respect to or resulting from any delay in paying or failure to pay such taxes or fees, other  than  those  liabilities  resulting  from  the  gross  negligence  or  willful  misconduct  of  the  Administrative Agent, or, with respect to amounts owing to a Lender, such Lender, in each case  as determined by a final and non-appealable judgment of a court of competent jurisdiction.  All  obligations provided for in this Section 11.5 shall survive any termination of this Agreement.            Section  11.6.   Indemnification.   The  Borrower  agrees  to  defend,  indemnify  and  hold  harmless  the  Administrative  Agent,  the  Issuing  Lender  and  the  Lenders  (and  their  respective  affiliates,  officers,  directors,  attorneys,  agents  and   employees)  from  and  against  any  and  all                                         102  





 






   liabilities,  obligations,  losses,  damages,  penalties,  actions,  judgments,  suits,  costs,  expenses  (including  reasonable  attorneys’  fees)  or  disbursements  of  any  kind  or  nature  whatsoever  that  may be imposed on, incurred by or asserted against the Administrative Agent or any Lender in  connection  with  any  investigative,  administrative  or  judicial  proceeding  (whether  or  not  such  Lender or the Administrative Agent shall be designated a party thereto) or any other claim by  any Person (or any other Credit Party) relating to or arising out of any Loan Document or any  actual or proposed use of proceeds of the Loans or any of the Obligations, or any activities of  any Company or its Affiliates; provided that no Lender nor the Administrative Agent shall have  the  right  to  be  indemnified  under  this  Section  11.6  for  its  own  (or  its  respective  affiliates’,  officers’, directors’, attorneys’, agents’ or employees’) gross negligence or willful misconduct,  as determined by a final and non-appealable judgment of a court of competent jurisdiction.  All  obligations  provided  for  in  this  Section  11.6  shall  survive  any  termination  of  this  Agreement.   Notwithstanding the foregoing, the obligations provided for in this Section 11.6 shall not apply  with respect to any Taxes that are Indemnified Taxes or Excluded Taxes.          Section  11.7.   Obligations  Several;  No  Fiduciary  Obligations.   The  obligations  of  the  Lenders hereunder are several and not joint.  Nothing contained in this Agreement and no action  taken by the Administrative Agent or the Lenders pursuant hereto shall be deemed to constitute  the Administrative Agent or the Lenders a partnership, association, joint venture or other entity.   No default by any Lender hereunder shall excuse the other Lenders from any obligation under  this Agreement; but no  Lender shall have or acquire any  additional obligation of  any  kind by  reason of such default.  The relationship between the Borrower and the Lenders with respect to  the  Loan  Documents  and  the  other  Related  Writings  is  and  shall  be  solely  that  of  debtor  and  creditors,  respectively,  and  neither  the  Administrative  Agent  nor  any  Lender  shall  have  any  fiduciary  obligation  toward  any  Credit  Party  with  respect  to  any  such  documents  or  the  transactions contemplated thereby.          Section  11.8.   Execution  in  Counterparts.   This  Agreement  may  be  executed  in  any  number of counterparts and by different parties hereto in separate counterparts, and by facsimile  or other electronic signature, each of which counterparts when so executed and delivered shall be  deemed to be an original and all of which taken together shall constitute but one and the same  agreement.          Section  11.9.   Binding  Effect;  Borrower’s  Assignment.   This  Agreement  shall  become  effective when it shall have been executed by the Borrower, the Administrative Agent and each  Lender  and  thereafter  shall  be  binding  upon  and  inure  to  the  benefit  of  the  Borrower,  the  Administrative  Agent  and  each  of  the  Lenders  and  their  respective  successors  and  permitted  assigns, except that the Borrower shall not have the right to assign its rights hereunder or any  interest  herein  without  the  prior  written  consent  of  the  Administrative  Agent  and  all  of  the  Lenders.          Section 11.10.  Lender Assignments.          (a)   Assignments of Commitments.  Each Lender shall have the right at any time or  times to assign to an Eligible Transferee (other than to a Defaulting Lender), without recourse,  all or a percentage of all of the following: (i) such Lender’s Commitment, (ii) all Loans made by                                         103  





 






   that Lender, (iii) such Lender’s Notes, and (iv) such Lender’s interest in any Letter of Credit or  Swing  Loan,  and  any  participation  purchased  pursuant  to  Section  2.2(b)  or  (c)  or  Section  9.5  hereof.          (b)   Prior  Consent.   No  assignment  may  be  consummated  pursuant  to  this  Section  11.10 without the prior written consent of the Borrower and the Administrative Agent (other than  an  assignment  by  any  Lender  to  any  affiliate  of  such  Lender  which  affiliate  is  an  Eligible  Transferee and  either wholly-owned by  a  Lender or is  wholly-owned by a Person that wholly  owns,  either  directly  or  indirectly,  such  Lender,  or  to  another  Lender),  which  consent  of  the  Borrower and the Administrative Agent shall not be unreasonably withheld; provided that (i) the  consent of the Borrower shall not be required (except for an assignment to a Defaulting Lender)  if, at the time of the proposed assignment, any Default or Event of Default shall then exist, and  (ii) the Borrower shall be deemed to have granted its consent unless the Borrower has expressly  objected to such assignment within five (5) Business Days after notice thereof.  Anything herein  to the contrary notwithstanding, any Lender may at any time make a collateral assignment of all  or any portion of its rights under the Loan Documents to a Federal Reserve Bank, and no such  assignment shall release such assigning Lender from its obligations hereunder.          (c)   Minimum Amount.  Each such assignment shall be in a minimum amount of the  lesser of Five Million Dollars ($5,000,000) of the assignor’s Commitment and interest herein, or  the entire amount of the assignor’s Commitment and interest herein.          (d)   Assignment Fee.  Unless the assignment shall be to an affiliate of the assignor or  the  assignment  shall  be  due  to  merger  of  the  assignor  or  for  regulatory  purposes,  either  the  assignor  or  the  assignee  shall  remit  to  the  Administrative  Agent,  for  its  own  account,  an  administrative fee of Three Thousand Five Hundred Dollars ($3,500).          (e)   Assignment  Agreement.   Unless  the  assignment  shall  be  due  to  merger  of  the  assignor  or  a  collateral  assignment  for  regulatory  purposes,  the  assignor  shall  (i)  cause  the  assignee  to  execute  and  deliver  to  the  Borrower  and  the  Administrative  Agent  an  Assignment  Agreement, and (ii) execute and deliver, or cause the assignee to execute and deliver, as the case  may be, to the Administrative Agent such additional amendments, assurances and other writings  as the Administrative Agent may reasonably require.          (f)   Non-U.S. Assignee.  If the assignment is to be made to an assignee that is not a  U.S. Person, the assignor Lender shall cause such assignee, at least five Business Days prior to  the effective date of such assignment, (i) to represent to the assignor Lender (for the benefit of  the assignor Lender, the Administrative Agent and the Borrower) that under applicable law and  treaties no taxes will be required to be withheld by the Administrative Agent, the Borrower or  the assignor with respect to any payments to be made to such assignee in respect of the Loans  hereunder, (ii) to furnish to the assignor Lender (and, in the case of any assignee registered in the  Register  (as  defined  below),  the  Administrative  Agent  and  the  Borrower)  either  U.S.  Internal  Revenue  Service  Form  W-8ECI,  Form  W-8IMY,  Form  W-8BEN,  or  Form  W-8BEN-E,  as  applicable (wherein such assignee claims entitlement to complete exemption from U.S. federal  withholding tax on all payments hereunder), and (iii) to agree (for the benefit of the assignor, the  Administrative Agent and the Borrower) to provide to the assignor Lender (and, in the case of                                         104  





 






   any  assignee  registered  in  the  Register,  to  the  Administrative Agent  and  the  Borrower)  a  new  Form W-8ECI,  Form W-8IMY,  Form W-8BEN, or  Form W-8BEN-E,  as applicable,  upon the  expiration  or  obsolescence  of  any  previously  delivered  form  and  comparable  statements  in  accordance  with  applicable  U.S.  laws  and  regulations  and  amendments  duly  executed  and  completed by such assignee, and to comply from time to time with all applicable U.S. laws and  regulations with regard to such withholding tax exemption.          (g)   Deliveries  by  Borrower.   Upon  satisfaction  of  all  applicable  requirements  specified in subsections (a) through (f) above, the Borrower shall execute and deliver (i) to the  Administrative Agent, the assignor and the assignee, any consent or release (of all or a portion of  the obligations of the assignor) required to be delivered by the Borrower in connection with the  Assignment Agreement, and (ii) to the assignee, if requested, and the assignor, if applicable, an  appropriate  Note  or  Notes.   After  delivery  of  the  new  Note  or  Notes,  the  assignor’s  Note  or  Notes, if any, being replaced shall be returned to the Borrower marked “replaced”.          (h)   Effect of Assignment.  Upon satisfaction of all applicable requirements set forth  in subsections (a) through (g) above, and any other condition contained in this Section 11.10, (i)  the assignee shall  become and thereafter  be deemed to be a  “Lender” for the purposes of this  Agreement, (ii) the assignor shall be released from its obligations hereunder to the extent that its  interest has been assigned, (iii) in the event that the assignor’s entire interest has been assigned,  the assignor shall cease to be and thereafter shall no longer be deemed to be a “Lender” and (iv)  the signature pages hereto and Schedule 1 hereto shall be automatically amended, without further  action, to reflect the result of any such assignment.          (i)  Administrative  Agent  to  Maintain  Register.   The  Administrative  Agent  shall  maintain at the address for notices referred to in Section 11.4 hereof a copy of each Assignment  Agreement delivered to it  and a register (the “Register”) for the recordation of the names and  addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to,  each Lender from time to time.  The entries in the Register shall be conclusive, in the absence of  manifest  error,  and  the  Borrower,  the  Administrative  Agent  and  the  Lenders  may  treat  each  Person whose name is recorded in the Register as the owner of the Loan recorded therein for all  purposes of this Agreement.  The Register shall be available for inspection by the Borrower or  any Lender at any reasonable time and from time to time upon reasonable prior notice.          Section  11.11.   Sale  of  Participations.   Any  Lender  may,  in  the  ordinary  course  of  its  commercial  banking  business  and  in  accordance  with  applicable  law,  at  any  time  sell  participations to one or more Eligible Transferees (each a “Participant”) in all or a portion of its  rights  or  obligations  under  this  Agreement  and  the other  Loan  Documents  (including,  without  limitation, all or a portion of the Commitment and the Loans and participations owing to it and  the Note, if any, held by it); provided that:          (a)   any  such  Lender’s  obligations  under  this  Agreement  and  the  other  Loan  Documents shall remain unchanged;          (b)   such  Lender  shall  remain  solely  responsible  to  the  other  parties  hereto  for  the  performance of such obligations;                                         105  





 






           (c)   the parties hereto shall continue to deal solely and directly with such  Lender in  connection with such Lender’s rights and obligations under this Agreement and each of the other  Loan Documents;           (d)   such  Participant  shall  be  bound  by  the  provisions  of  Sections  3.4,  3.6  and  9.5  hereof,  and  the  Lender  selling  such  participation  shall  obtain  from  such  Participant  a  written  confirmation of its agreement to be so bound; and          (e)   no  Participant  (unless  such  Participant  is  itself  a  Lender)  shall  be  entitled  to  require  such  Lender  to  take  or  refrain  from  taking  action  under  this  Agreement  or  under  any  other Loan Document, except that such Lender may agree with such Participant that such Lender  will not, without such Participant’s consent, take action of the type described as follows:                (i)  increase the portion of the participation amount of any Participant over the        amount  thereof  then  in  effect,  or  extend  the  Commitment  Period,  without  the  written        consent of each Participant affected thereby; or                      (ii)  reduce  the  principal  amount  of  or  extend  the  time  for  any  payment  of        principal of any  Loan, or reduce the rate of interest  or extend the time for payment of        interest on any Loan, or reduce the commitment fee, without the written consent of each        Participant affected thereby.    The Borrower agrees that any Lender that sells participations pursuant to this Section 11.11 shall  still be entitled to the benefits of Article III hereof, notwithstanding any such transfer; provided  that  the  obligations  of  the  Borrower  shall  not  increase  as  a  result  of  such  transfer  and  the  Borrower shall have no obligation to any Participant. Each Lender that sells a participation shall,  acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on  which it enters the name and address of each Participant and the principal amounts (and stated  interest)  of  each  Participant’s  interest  in  the  Loans  or  other  obligations  under  the  Loan  Documents  (the  “Participant  Register”);  provided  that  no  Lender  shall  have  any  obligation  to  disclose all or any portion of the Participant Register (including the identity of any Participant or  any information relating to a Participant's interest in any commitments, loans, letters of credit or  its  other  obligations  under  any  Loan  Document)  to  any  Person  except  to  the  extent  that  such  disclosure  is  necessary  to  establish  that  such  commitment,  loan,  letter  of  credit  or  other  obligation  is  in  registered  form  under  Section  5f.103-1(c)  of  the  United  States  Treasury  Regulations.  The entries in the Participant Register shall  be conclusive  absent  manifest  error,  and such Lender shall treat each Person whose name is recorded in the Participant Register as the  owner of such participation for all purposes of this Agreement notwithstanding any notice to the  contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative  Agent) shall have no responsibility for maintaining a Participant Register.          Section 11.12.  Replacement of Affected Lenders.  Each Lender agrees that, during the  time in which any Lender is an Affected Lender, the Administrative Agent shall have the right  (and the Administrative Agent shall, if requested by the Borrower), at the sole expense of the  Borrower, upon notice to such Affected Lender and the Borrower, to require that such Affected                                         106  





 






   Lender assign and  delegate, without recourse (in accordance with the restrictions contained in  Section  11.10  hereof),  all  of  its  interests,  rights  and  obligations  under  this  Agreement  to  an  Eligible Transferee, approved by the Borrower (unless an Event of Default shall exist) and the  Administrative  Agent,  that  shall  assume  such  obligations  (which  assignee  may  be  another  Lender,  if  a  Lender  accepts  such  assignment);  provided  that  such  Affected  Lender  shall  have  received  payment  of  an  amount  equal  to  the  outstanding  principal  of  its  Loans  (any  such  payment of principal shall be considered a prepayment of such Loans for purposes of Section 3.3  hereof),  accrued  interest  thereon,  accrued  fees  and  all  other  amounts  payable  to  it  hereunder  (recognizing  that  any  Affected  Lender  may  have  given  up  its  rights  under  this  Agreement  to  receive payment of fees and other amounts pursuant to Section 2.7(e) and (f) hereof), from such  Eligible Transferee (to the extent of such outstanding principal and accrued interest and fees) or  the  Borrower  (in  the  case  of  all  other  amounts,  including  any  breakage  compensation  under  Article III hereof).          Section 11.13.  Patriot Act Notice.  Each Lender, and the Administrative Agent (for itself  and  not  on  behalf  of  any  other  party),  hereby  notifies  the  Credit  Parties  that,  pursuant  to  the  requirements of the Patriot Act, such Lender and the Administrative Agent are required to obtain,  verify and record information that identifies the Credit Parties, which information includes the  name and address of each of the Credit Parties and other information that will allow such Lender  or the Administrative Agent, as applicable, to identify the Credit Parties in accordance with the  Patriot  Act.   The  Borrower  shall  provide,  to  the  extent  commercially  reasonable,  such  information and take such actions as are reasonably requested by the Administrative Agent or a  Lender  in  order  to  assist  the  Administrative  Agent  or  such  Lender  in  maintaining  compliance  with the Patriot Act.          Section 11.14.  Severability of Provisions; Captions; Attachments.  Any provision of this  Agreement  that  shall  be  prohibited  or  unenforceable  in  any  jurisdiction  shall,  as  to  such  jurisdiction,  be  ineffective  to  the  extent  of  such  prohibition  or  unenforceability  without  invalidating  the remaining  provisions  hereof  or  affecting  the validity  or  enforceability  of  such  provision in any other jurisdiction.  The several captions to sections and subsections herein are  inserted  for  convenience  only  and  shall  be  ignored  in  interpreting  the  provisions  of  this  Agreement.   Each schedule or exhibit attached to this Agreement  shall  be incorporated herein  and shall be deemed to be a part hereof.          Section 11.15.  Investment Purpose.  Each of the Lenders represents and warrants to the  Borrower that such Lender is entering into this Agreement with the present intention of acquiring  any Note issued pursuant hereto (or, if there is no Note, the interest as reflected on the books and  records of the Administrative Agent) for investment purposes only  and not for the purpose of  distribution or resale, it being understood, however, that each Lender shall at all times retain full  control over the disposition of its assets.          Section  11.16.   Entire  Agreement.   This  Agreement,  any  Note  and  any  other  Loan  Document or other agreement, document or instrument attached hereto or executed on or as of  the Closing Date integrate all of the terms and conditions mentioned herein or incidental hereto  and  supersede  all  oral  representations  and  negotiations  and  prior  writings  with  respect  to  the  subject  matter  hereof  (except  with  respect  to  any  provisions  of  the  Administrative  Agent  Fee                                         107  





 






   Letter or any commitment letter and fee letter between the Borrower and KeyBank that by their  terms survive the termination of such agreements, in each case, which shall remain in full force  and effect after the Closing Date).          Section 11.17.  Confidentiality.  The Administrative Agent and each Lender shall hold all  Confidential  Information  in  accordance  with  the  customary  procedures  of  the  Administrative  Agent  or  such  Lender  for  handling  confidential  information  of  this  nature,  and  in  accordance  with safe and sound banking practices.  Notwithstanding the foregoing, the Administrative Agent  or  any  Lender  may  in  any  event  make  disclosures  of,  and  furnish  copies  of  Confidential  Information (a) to another agent under this Agreement or another Lender; (b) when reasonably  required by any bona fide transferee or participant in connection with the contemplated transfer  of  any  Loans  or  Commitment  or  participation  therein  (provided  that  each  such  prospective  transferee  or  participant  shall  have  an  agreement  for  the  benefit  of  the  Borrower  with  such  prospective transferor Lender or participant containing substantially similar provisions to those  contained  in  this  Section  11.17);  (c)  to  the  parent  corporation  or  other  affiliates  of  the  Administrative Agent or such Lender, and to their respective auditors, accountants and attorneys;  and  (d)  as  required  or  requested  by  any  Governmental  Authority  or  representative  thereof,  or  pursuant to legal process, provided, that, unless specifically prohibited by applicable law or court  order,  the  Administrative  Agent  or  such  Lender,  as  applicable,  shall  notify  the  chief  financial  officer of the Borrower of any request by any Governmental Authority or representative thereof  (other than any such request in connection with an examination of the financial condition of the  Administrative Agent or such Lender by such Governmental Authority), and of any other request  pursuant to legal process, for disclosure of any such non-public information prior to disclosure of  such  Confidential  Information.   In  no  event  shall  the  Administrative  Agent  or  any  Lender  be  obligated or required to return any materials furnished by or on behalf of any Company.  The  Borrower hereby  agrees  that the failure of the Administrative Agent or  any  Lender to comply  with the provisions of this Section 11.17 shall not relieve the Borrower of any of the obligations  to  the  Administrative  Agent  and  the  Lenders  under  this  Agreement  and  the  other  Loan  Documents.          Section 11.18.  Limitations on Liability of the Issuing Lender.  The Borrower assumes all  risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect  to its use of such Letters of Credit.  Neither the Issuing Lender nor any of its officers or directors  shall be liable or responsible for (a) the use that may be made of any Letter of Credit or any acts  or omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency  or  genuineness  of  documents,  or  of  any  endorsement  thereon,  even  if  such  documents  should  prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by the  Issuing Lender against presentation of documents that do not comply with the terms of a Letter  of Credit, including failure of any documents to bear any reference or adequate reference to such  Letter  of  Credit;  or  (d)  any  other  circumstances  whatsoever  in  making  or  failing  to  make  payment under any Letter of Credit, except that the account party on such Letter of Credit shall  have a claim against the Issuing Lender, and the Issuing Lender shall be liable to such account  party, to the extent of any direct, but not consequential, damages suffered by such account party  that  such  account  party  proves  were  caused  by  (i)  the  Issuing  Lender’s  willful  misconduct  or  gross  negligence  (as  determined  by  a  final  judgment  of  a  court  of  competent  jurisdiction)  in  determining  whether  documents  presented  under  a  Letter  of  Credit  comply  with  the  terms  of                                         108  





 






   such Letter of Credit, or (ii) the Issuing Lender’s willful failure to make lawful payment under  any  Letter  of  Credit  after  the  presentation  to  it  of  documentation  strictly  complying  with  the  terms  and  conditions  of  such  Letter  of  Credit.   In  furtherance  and  not  in  limitation  of  the  foregoing,  the  Issuing  Lender  may  accept  documents  that  appear  on  their  face  to  be  in  order,  without responsibility for further investigation.          Section 11.19.  General Limitation of Liability.  No claim may be made by any Credit  Party  or  any  other  Person  against  the  Administrative  Agent,  the  Issuing  Lender,  or  any  other  Lender or the affiliates, directors, officers, employees, attorneys or agents of any of them for any  damages other than actual compensatory damages in respect of any claim for breach of contract  or any other theory of liability arising out of or related to the transactions contemplated by this  Agreement  or  any  of  the  other  Loan  Documents,  or  any  act,  omission  or  event  occurring  in  connection therewith; and the Borrower, each Lender, the Administrative Agent and the Issuing  Lender hereby, to the fullest extent permitted under applicable law, waive, release and agree not  to sue or counterclaim upon any such claim for any special, indirect, consequential or punitive  damages, whether or not accrued and whether or not known or suspected to exist in their favor  and  regardless  of  whether  any  Lender,  Issuing  Lender,  or  the  Administrative  Agent  has  been  advised of the likelihood of such loss of damage.          Section  11.20.   No  Duty.   All  attorneys,  accountants,  appraisers,  consultants  and  other  professional persons (including the firms or other entities on behalf of which any such Person  may  act)  retained  by  the  Administrative  Agent  or  any  Lender  with  respect  to  the  transactions  contemplated by the Loan Documents shall have the right to act exclusively in the interest of the  Administrative Agent or such Lender, as the case may be, and shall have no duty of disclosure,  duty of loyalty, duty of care, or other duty or obligation of any type or nature whatsoever to the  Borrower,  any  other  Companies,  or  any  other  Person,  with  respect  to  any  matters  within  the  scope of such representation or related to their activities in connection with such representation.   The  Borrower  agrees,  on  behalf  of  itself  and  its  Subsidiaries,  not  to  assert  any  claim  or  counterclaim  against  any  such  persons  with  regard  to  such  matters,  all  such  claims  and  counterclaims,  now  existing  or  hereafter  arising,  whether  known  or  unknown,  foreseen  or  unforeseeable, being hereby waived, released and forever discharged.          Section 11.21.  Legal Representation of Parties.  The Loan Documents were negotiated  by  the  parties  with  the  benefit  of  legal  representation  and  any  rule  of  construction  or  interpretation otherwise requiring this Agreement or any other Loan Document to be construed  or  interpreted  against  any  party  shall  not  apply  to  any  construction  or  interpretation  hereof  or  thereof.          Section 11.22.  Acknowledgement and Consent to Bail-In of EEA Financial Institutions.   Notwithstanding  anything  to  the  contrary  in  any  Loan  Document  or  in  any  other  agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any  liability of any EEA Financial Institution arising under any Loan Document, to the extent such  liability  is  unsecured,  may  be  subject  to  the  Write-Down  and  Conversion  Powers  of  an  EEA  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:                                           109  





 






         (a)   the application of any Write-Down and Conversion Powers by an EEA Resolution  Authority to any such liabilities arising hereunder that may be payable to it by any party hereto  that is an EEA Financial Institution; and          (b)   the effects of any Bail-in Action on any such liability, including, if applicable:                (i)  a reduction in full or in part or cancellation of any such liability;                      (ii)  a  conversion  of  all,  or  a  portion  of,  such  liability  into  shares  or  other        instruments of ownership in such EEA Financial Institution, its parent undertaking, or a        bridge  institution  that  may  be  issued  to  it  or  otherwise  conferred  on  it,  and  that  such        shares or other instruments of ownership will be accepted by it in lieu of any rights with        respect to any such liability under this Agreement or any other Loan Document; or                      (iii)  the variation of the terms of such liability in connection with the exercise        of the Write-Down and Conversion Powers of any EEA Resolution Authority.                Section 11.23.  Governing Law; Submission to Jurisdiction.            (a)   Governing  Law.   This  Agreement,  each  of  the  Notes  and  any  other  Related  Writing  shall  be  governed  by  and  construed  in  accordance  with  the  laws  of  the  State  of  New  York and the respective rights and obligations of the Borrower, the Administrative Agent, and  the Lenders shall be governed by New York law.          (b)   Submission  to  Jurisdiction.   The  Borrower  hereby  irrevocably  submits  to  the  non-exclusive jurisdiction of any New York state or federal court sitting in New York County,  New  York,  over  any  action  or  proceeding  arising  out  of  or  relating  to  this  Agreement,  the  Obligations  or any other Related Writing, and the Borrower hereby irrevocably  agrees that all  claims in respect of such action or proceeding may be heard and determined in such New York  state or federal court.  The Borrower, on behalf of itself and its Subsidiaries, hereby irrevocably  waives, to the fullest extent permitted by law, any objection it may now or hereafter have to the  laying of venue in any action or proceeding in any such court as well as any right it may now or  hereafter have to remove such action or proceeding, once commenced, to another court on the  grounds of FORUM NON CONVENIENS or otherwise.  The Borrower agrees that a final, non- appealable 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.                         [Remainder of page left intentionally blank]    4818-0620-4809.6                                           110  





 






Doc ID: 68703abdbeb85594d14e90cfdcc8344d749628e9 





 






 





 






                                                     SCHEDULE 1                                                                                     REVOLVING      REVOLVING                                                                             TERM LOAN                                 CREDIT         CREDIT        TERM LOAN                       MAXIMUM           LENDERS                                                          COMMITMENT                              COMMITMENT     COMMITMENT      COMMITMENT                        AMOUNT                                                                               AMOUNT                               PERCENTAGE       AMOUNT       PERCENTAGE  KeyBank National Association    100%         $25,000,000       100%             $0          $25,000,000                                  100%         $25,000,000       100%             $0                                                                                                      Total Commitment Amount                                                                     $25,000,000                                                       S-1  





 






                                    SCHEDULE 2                                                                    GUARANTORS OF PAYMENT    Broadband, LLC, a Delaware limited liability company    Bandwidth.com CLEC, LLC, a Delaware limited liability company                                               S-2  





 






                                    SCHEDULE 3                                                                       PLEDGED SECURITIES                                                                       Jurisdiction              Certificate Ownership    Pledgor       Name of    of Subsidiary Number of     Number     Percentage                 Subsidiary                  Shares/                                                   Membership                                             Units                                                  Bandwidth    Bandwidth.com     DE           N/A         N/A         100%   Inc.         CLEC, LLC                                                              Bandwidth    Broadband,        DE           N/A         N/A         100%   Inc.         LLC                                                              Bandwidth    IP Spectrum       DE           N/A         N/A         100%   Inc.         Solutions,                LLC                                                                                                                             S-3  





 






                            BANDWIDTH.COM, INC.                             Schedule 5.8 Indebtedness The Indebtedness existing on the Closing Date, in addition to the other Indebtedness permitted to be incurred pursuant to Section 5.8: Obligee                               Description  Red Hat, Inc.                         Letter of credit in the amount of $350,000                                       (cash secured pursuant to the Interim                                       Indebtedness) in connection with sublease.  State of Arizona                      Letter of credit in the amount of                                       approximately $100,578 (cash secured                                       pursuant to the Interim Indebtedness) in                                       connection with provision of services in the                                       State of Arizona.  State of Tennessee                    Letter of credit in the amount of                                       approximately $20,000 (cash secured                                       pursuant to the Interim Indebtedness) in                                       connection with provision of services in the                                       State of Tennessee.  T-Mobile USA, Inc.                    Letter of credit in the amount of $750,000                                       (cash secured pursuant to the Interim                                       Indebtedness) in connection with purchase of                                       telecommunications services; provided,                                       however, will not be an obligation of the                                       Borrower as of the Initial Funding Date.  Brightpoint Distribution, LLC         Letter of credit in the amount of $500,000                                       (cash secured pursuant to the Interim                                       Indebtedness) in connection with purchase of                                       telecommunications services; provided,                                       however, will not be an obligation of the                                       Borrower as of the Initial Funding Date.                                        S-4 





 






                            BANDWIDTH.COM, INC.                                Schedule 5.9 Liens None, except as otherwise permitted pursuant to Section 5.9.                                        S-5 





 






                            BANDWIDTH.COM, INC.                    Schedule 5.11 Additional Permitted Investments Permitted Investment                  Description  Didify, LLC                           Equity interests representing 19.9%  GroundFloor Finance, Inc.             20,797 shares of Series A Preferred Stock  North American Portability Management, Membership interest with annual capital LLC                                   contributions calculated to approximately                                       equal the pro rata share of the entity’s                                       operating budget                                        S-6 





 






                               BANDWIDTH INC.             Schedule 6.1  Corporate Existence; Subsidiaries; Foreign Qualification   Company       Dormant    Tax ID:  Equityholder(s);  State of Jurisdictions in                Subsidiary         Subsidiaries; and Formation or Which Qualified                                   Chief Executive Incorporation or Authorized to                                   Office and                  Conduct Business                                   Principal Place of                                             Business                                     Bandwidth Inc. No        56-     Equityholders: Delaware     AK, AL, AR, AZ,  (f/k/a                   2242657 Various                     CA, CO, CT, DC,  “Bandwidth.com,                  stockholders                DE, FL, GA, HI,  Inc.”                                                        IA, ID, IL, IN, KS,                                   Subsidiaries:               KY, LA, MA, MD,                                   Bandwidth.com               ME, MI, MN, MO,                                   CLEC, LLC                   MS, MT, NC, ND,                                   Broadband, LLC              NE, NH, NJ, NM,                                   IP Spectrum                 NV, NY, OH, OK,                                   Solutions, LLC              OR, PA, RI, SC,                                                               SD, TN, TX, UT,                                   Chief Executive             VA, VT, WA, WI,                                   Office and                  WV, WY                                   Principal Place of                                             Business:                                   900 Main Campus                                   Drive, Suite 100                                   Raleigh, NC                                   27606                                     Bandwidth.com No         20-     Equityholders: Delaware     AK, AL, AR, AZ,  CLEC, LLC                8326570 Bandwidth Inc.              CA, CO, CT, DC,                                   (100%)                      DE, FL, GA, HI,                                                               IA, ID, IL, IN, KS,                                   Subsidiaries:               KY, LA, MA, MD,                                   None                        ME, MI, MN, MO,                                                               MS, MT, NC, ND,                                   Chief Executive             NE, NH, NJ, NM,                                   Office and                  NV, NY, OH, OK,                                   Principal Place of          OR, PA, RI, SC,                                   Business:                   SD, TN, TX, UT,                                   900 Main Campus             VA, VT, WA, WI,                                   Drive, Suite 100            WV, WY                                   Raleigh, NC                                                    27606                                     Broadband, LLC No        45-     Equityholders: Delaware     AL, CA, CO, DC,                           4579225 Bandwidth Inc.              DE, FL, ID, IL, IN,                                   (100%)                      KY, LA, MA, MD,                                                               ME, MI, MN, MO,                                   Subsidiaries:               MS, MT, NC, ND,                                   None                        NE, NM, NV, NY,  





 






                               BANDWIDTH INC.                                                                  OH, OR, SD, TX,                                   Chief Executive             VA, WA, WI, WV                                   Office and                                                     Principal Place of                                   Business:                                   900 Main Campus                                   Drive, Suite 100                                   Raleigh, NC                                   27606                                     IP Spectrum   Yes        47-     Equityholders: Delaware     DE and NC  Solutions, LLC           2967675 Bandwidth Inc.                                                 (100%)                                                                      Subsidiaries:                                   None                                                                      Chief Executive                                   Office and                                   Principal Place of                                   Business:                                   900 Main Campus                                   Drive, Suite 100                                   Raleigh, NC                                   27606                                     UK Bandwidth  No                 Equityholders: England and  England and Wales  Limited                          Bandwidth Inc. Wales                                   (100%)                                                                      Subsidiaries:                                   None                                                                      Chief Executive                                   Office and                                   Principal Place of                                   Business:                                   3rd Floor, 1 Ashley                                   Road, Altrincham,                                   Cheshire, WA14                                   2DT  NL Bandwidth  No                 Equityholders: The          The Netherlands  B.V.                             Bandwidth Inc. Netherlands                                   (100%)                                                                      Subsidiaries:                                   None                                                                      Chief Executive                                   Office and                                   Principal Place of  





 






BANDWIDTH INC.                    Business:    Prins    Bernhardplein    200, 1097 JB    Amsterdam, The    Netherlands                                





 






                            BANDWIDTH.COM, INC.                Schedule 6.4 Litigation and Administrative Proceedings None.                                        S-9 





 






                            BANDWIDTH.COM, INC.                              Schedule 6.9 Locations Company                  Chief Executive Office    Other Locations  Bandwidth.com, Inc.      900 Main Campus Drive     1)  345 Courtland St., NE,                          Suite 500                     Atlanta (Fulton County),                          Raleigh, NC 27606             GA  30308                           Leased; Landlord’s Waiver Leased; Landlord’s Waiver                          required                  required                                                     2)  5303 Departure Dr.,                                                        Raleigh (Wake County),                                                        NC  27616                                                     Leased; Landlord’s Waiver                                                    required                                                     3)  60 Hudson St., New                                                        York (New York                                                        County), NY 10013                                                     Leased; Landlord’s Waiver                                                    required                                                     4)  600 W 7th St., Los                                                        Angeles (Los Angeles                                                        County), CA 90017                                                     Leased; Landlord’s Waiver                                                    required                                                     5)  2323 Bryan St., Dallas                                                        (Dallas County), TX                                                        75201                                                     Leased; Landlord’s Waiver                                                    required                                                     6)  1860 Blake St., Denver                                                        (Denver County), CO                                                        80202                                                     Leased; Landlord’s Waiver                                                    not required                                                     7)  39 Cascade Dr.,                                       S-10 





 






                            BANDWIDTH.COM, INC.                                                         Rochester (Monroe                                                        County), NY 14614                                                     Leased; Landlord’s Waiver                                                    not required  Bandwidth.com CLEC, LLC  900 Main Campus Drive     1)  345 Courtland St., NE,                          Suite 500                     Atlanta (Fulton County),                          Raleigh, NC 27606             GA  30308                           Leased; Landlord’s Waiver Leased; Landlord’s Waiver                          required                  required                                                     2)  5303 Departure Dr.,                                                        Raleigh (Wake County),                                                        NC  27616                                                     Leased; Landlord’s Waiver                                                    required                                                     3)  60 Hudson St., New                                                        York (New York                                                        County), NY 10013                                                     Leased; Landlord’s Waiver                                                    required                                                     4)  600 W 7th St., Los                                                        Angeles (Los Angeles                                                        County), CA 90017                                                     Leased; Landlord’s Waiver                                                    required                                                     5)  2323 Bryan St., Dallas                                                        (Dallas County), TX                                                        75201                                                     Leased; Landlord’s Waiver                                                    required                                                     6)  1860 Blake St., Denver                                                        (Denver County), CO                                                        80202                                                     Leased; Landlord’s Waiver                                       S-11 





 






                            BANDWIDTH.COM, INC.                                                     not required                                                     7)  39 Cascade Dr.,                                                        Rochester (Monroe                                                        County), NY 14614                                                     Leased; Landlord’s Waiver                                                    not required  Broadband, LLC           900 Main Campus Drive     None                          Suite 500                          Raleigh, NC 27606                           Leased; Landlord’s Waiver                          required  IP Spectrum Solutions, LLC 900 Main Campus Drive   None                          Suite 500                          Raleigh, NC 27606                           Leased; Landlord’s Waiver                          required                                        S-12 





 






                            BANDWIDTH.COM, INC.                        Schedule 6.11 Employee Benefits Plans       The ERISA Plans as of the Closing Date are: Bandwidth.com Group Medical Plan Bandwidth.com Group Dental Plan Bandwidth.com Group Life Plan Bandwidth.com Group Disability Plan Bandwidth.com Flexible Benefits Plan Bandwidth.com 401(k) Profit Sharing & Trust                                        S-13 





 






     BANDWIDTH.COM, INC.  Schedule 6.12 Consents or Approvals Jurisdiction  Type of Filing  Connecticut   Notice Delaware      Notice of Election Georgia       Approval Hawaii        Approval Indiana       Verified Notice Maryland      Approval Massachusetts Notice New Jersey    Approval New York      Approval Pennsylvania  Abb. Sec.               Certificate Rhode Island  Notice Tennessee     Notice of Election                 S-14 





 






                            BANDWIDTH.COM, INC.                         Schedule 6.16 Material Agreements Clause Counterparty          Agreement  (a)    Pacific Western Bank (as Loan and Security Agreement, dated September 25,        successor to Square 1 2008, as amended        Bank)         Various               Letters of Credit as described on Schedule 5.8  (b)    Venture Center, LLC   Office Lease, dated January 22, 2013, as amended         Red Hat, Inc.         Agreement of Sublease, dated May 31, 2012         Allied Telesis Capital Sublease, dated December 1, 2015        Corporation         Blake Street Investments, Office Lease, dated March 1, 2016        LLC         JSS Properties Rochester Lease Agreement, dated April 15, 2013        LLC         Red Hat, Inc.         Furniture (included with Agreement of Sublease, dated                              May 31, 2012)         Cisco Systems Capital Various equipment leases with an aggregate book value        Corporation           of approximately $124,568.58  (c)    Motorola Mobility, Inc. Wireless Products Supply Agreement, dated as of May                              23, 2012 (and various purchase agreements and orders                              entered into in connection therewith)*         Sprint Spectrum L.P.  Private Label PCS Services Agreement, dated as of                              March 8, 2010, as amended*         T-Mobile USA, Inc.    Wholesale Supply Agreement, dated as of April 28,                              2015, as amended*         Various               Bandwidth.com  CLEC, LLC   holds various licenses,                              intercarrier agreements and other similar arrangements in                              the ordinary course of business, some of which, if                              violated, breached, or terminated for any reason, would                              have or would be reasonably expected to have a Material                              Adverse Effect.                                       S-15 





 






                            BANDWIDTH.COM, INC.         Avalara Inc. (formerly Master Services Agreement, dated July 26, 2012, which,        known as BillSoft, Inc.) if violated, breached, or terminated for any reason, would                              have or would be reasonably expected to have a Material                              Adverse Effect.         NetSuite Inc.         NetSuite Subscription Services Agreement, dated as of                              April 30, 2013, which, if violated, breached, or                              terminated for any reason, would have or would be                              reasonably expected to have a Material Adverse Effect.  (d)    Bandwidth.com CLEC,   Administrative and   Telecommunications Services        LLC                   Agreement, dated as of August 26, 2011         Broadband, LLC        Administrative Services Agreement, dated as of March                              30, 2012         Republic Wireless, Inc. Various agreements anticipated to be entered into                              immediately prior to the Spin-Off         Various               Investors’ Rights Agreement, dated as of February 22,                              2011, as amended         Various               Right of First Refusal and Co-Sale Agreement, dated as                              of February 22, 2011, as amended         Various               Voting Agreement, dated as of February 22, 2011, as                              amended         Various               Buy-Sell Agreements, various dates         David A. Morken       Employment Agreement, dated January 1, 2015         David A. Morken       Incentive Stock Option Agreement, dated April 13, 2012  (e)    David A. Morken       Employment Agreement, dated January 1, 2015         John C. Murdock       Employment Agreement, dated October 1, 2008         W. Christopher Matton Employment Agreement, dated May 3, 2010         Gregory C. Rogers     Employment Agreement, dated September 13, 2010         Steve Leonard         Offer Letter, dated as of September 17, 2010         Mary Tuten            Offer Letter, dated as of February 17, 2011                                       S-16 





 






                            BANDWIDTH.COM, INC.         Carmichael Investment Consulting Agreement, dated as of February 22, 2011        Partners, LLC         Jeffrey Hoffman       Offer Letter, dated as of September 15, 2011  (f)    None.                 None.  (g)    See (a) – (e) above.  See (a) – (e) above.         Blue Cross Blue Shield Administrative Services Agreement, dated March 1,        of North Carolina     2013         Level3                Master Service Agreement, dated August 4, 2004, as                              amended         Sonus Networks, Inc.  Standard Purchase and License Terms, dated August 21,                              2007, as amended   * To be assigned to Republic Wireless, Inc. pursuant to the Spin-Off                                        S-17 





 






                                                                                              BANDWIDTH.COM, INC.                                                                                  Schedule 6.17 Intellectual Property Patents (excluding those to be transferred to Republic Wireless, Inc. pursuant to the Spin- Off):                                                                                                                      IS SUED P ATENTS                                        BW.0000                    IP- Based Call Answering Point Selection and     1    911Services     (BBS)                                                                                                Villis (DASH/VIXXI)                                   12/134,355           8 ,8 3 0 ,9 8 7     9/9/2014                 NO                                       (ACQUIRED)                 Routing     2     911Services     (BBS)        BW.0020                    Dynamic Update of Address for VoIP 911                       Stephens, Shugart, Breault 7/22/2014                  14/337,601           9 ,0 4 2 ,3 0 9     5/26/2015                NO     3     911Services     (BBS)        BW.0020.CON                Dynamic Update of Address for VoIP 911                       Stephens, Shugart, Breault 7/22/2014                  14/698,914           9 ,17 9 ,2 5 5      11/3/215                 NO           Ring.To Outbound                                        Techniques for Telecommunications Contact    4                                  BW.0025.B                                                                               Jenkins, Roldan                     5/18/2015         14/714,643           9 ,2 6 4 ,5 3 5     2/16/2016                NO          Dialing  (BBS )                                         Management on an End User Device                                                                  Techniques to Process Text Messages for                                                                                                                                                                                                                                                    ELIGIBLE    5     Text- to- 911  (BBS )        BW.0043                    Communication to an Emergency Service                        Holthausen, Matton, Rogers 4/7/2016                   15/093,156           9 ,4 3 2 ,8 2 9     8/30/2016                                                                                                                                                                                                                                                  (04/07/2017)                                                                  Provider    6     ByteBoard     (BBS )         BW.0035                    Techniques for Sharing Image Data Remotely                   Evans, Goslen                       8/13/2015         14/825,200           9 ,4 3 8 ,8 5 8     9/6/2016                 NO                                                                   Techniques to CommunicateMessages Utilizing                                                                                                                                       ELIGIBLE    7     Bandcast     (BBS)           BW.0042                                                                                 Tolbert, Forrest                    4/25/2016         15/137,518           9 ,4 4 5 ,2 4 4     9/13/2016                                                                  a Common Telephone Number                                                                                                                                                       (04/25/2017)                                                                                                             P ENDING U. S. APP LICATIO NS      1    911Services                  BW.0026                    Location Information Validation Techniques                   Reeder                              7/16/2015         14/800,963        PENDING                                         NO                                                                   Techniques to Communicate a Text Message to                                                                                                                                       ELIGIBLE    2     Text to 911                  BW.0044                                                                                 Roldan                              5/25/2016         15/164,218        PENDING                                                                  an Emergency Service Provider                                                                                                                                                   (5/25/2017)                                                                  Techniques for Troubleshooting IP Based                                                                                                                                           ELIGIBLE    3     Network Mgmt.                BW.0030                                                                                 Milko                               6/17/2016         15/185,362        PENDING                                                                  Telecommunications Networks                                                                                                                                                      (6/17/2017)  Trademarks (excluding those to be transferred to Republic Wireless, Inc. pursuant to the Spin-Off):           Reg.                        Word                                                                                                                                                Check Status      Number                           Mark 86212845                                                   ALL YOU CAN COMMUNICATE 86629276                        5018784                    BW 86654656                                                   THE WAY IT SHOULD BE 86625478                                                   BW        BANDWIDTH 86056412                        4633802                    BW 86056410                        4633801                    BW        BANDWIDTH 85003465                        3853995 85390814                        4224197                    FREE YOUR VOICE 85390809                        4224196                    FIND YOUR VOICE 85378481                        4332449                    IN 85378407                        4332447                    IN 85110615                        4053891                    PHONEBOOTH MOBILE 85110607                        3947639                    PHONEBOOTH                                                            $20 PHONEBOOTH ONDEMAND THE UNLIMITED, FULL-FEATURED PHONE 85003513                        3857068                                                            SYSTEM IN THE CLOUD 85003503                        3857067                    $20 PHONEBOOTH ONDEMAND 85003489                        3857066                    PHONEBOOTH ONDEMAND 85003477                        3857065                    $0 PHONEBOOTH FREE NEVER PAY FOR YOUR FIRST PHONE SYSTEM 85003470                        3857064                    $0 PHONEBOOTH FREE                                                                                                                              S-18 





 






                            BANDWIDTH.COM, INC.  Copyrights (excluding those to be transferred to Republic Wireless, Inc. pursuant to the Spin-Off): None, other than those that may be available pursuant to common law principles. Service Marks (Excluding those to be transferred to Republic Wireless, Inc. pursuant to the Spin-Off): None, except (1) any service marks that may be referenced above in “Trademarks”), and (2) those that may be available pursuant to common law principles. License Agreements (excluding those to be transferred to Republic Wireless, Inc. pursuant to the Spin-Off): None, other than those routinely licensed (1) to the Companies in the ordinary course of business pursuant to customary license agreements, subscription agreements and other similar agreements on a non-exclusive basis, and (2) by the Borrower in the ordinary course of business in connection with the usual and customary use of the Borrower’s services on a non-exclusive basis.                                        S-19 





 






BANDWIDTH.COM, INC.  Schedule 6.18 Insurance      See attached.            S-20 





 






INSURANCE SUMMARY                Prepared  For:                                                                             Bandwidth.com, Inc. (ATL)  Date Prepared: 10/20/2016                                                                                                                                                                                                   Venture Center III 900 Main Campus                                                                                  Arthur J. Gallagher Risk Management                                   Drive, Suite 500                               Services, Inc.                                  Raleigh, NC 27606                              1040 Crown Pointe Parkway Suite 700                                                                                  Atlanta, GA 30338                                                                         Page 1 of 15              Schedule of Locations       Location     Address       #       1            345 Courtland St Ne , Atlanta, GA 30308       2            5303 Departure Dr. , Raleigh, NC 27616       3            60 Hudson St. , New York, NY 10013       4            600 W 7th St. , Los Angeles, CA 90017       5            2323 Bryan St. , Dallas, TX 75201       9            900 Main Campus Dr., Ste 500 Venture Center III, Raleigh, NC 27606       10           2000 Midway Lane , Smyrna, TN 37167       12           39 Cascade Dr. , Rochester, NY 14614       13           1860 Blake Street, Denver, CO 80202                                                                                                             IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of the       terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself for       those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                Prepared  For:                                                                             Bandwidth.com, Inc. (ATL)  Date Prepared: 10/20/2016                                                                                                                                                                                                   Venture Center III 900 Main Campus                                                                                  Arthur J. Gallagher Risk Management                                   Drive, Suite 500                               Services, Inc.                                  Raleigh, NC 27606                              1040 Crown Pointe Parkway Suite 700                                                                                  Atlanta, GA 30338                                                                         Page 2 of 15           Coverage                    EFFECTIVE        EXPIRATION        COMPANY              POLICY          PREMIUM                               DATE             DATE                                   NUMBER   Commercial Package          2/16/2016        2/16/2017         Federal Insurance    35951605        $98,704.00                                                                  Company                                            COMMERCIAL PROPERTY             Locations: 1,2,4,5,9,10,12                    Subject of Insurance            Limit            Deductible     Cause        Coinsurance     Valuation                                                                       of Loss      %                                       $17,247,500      2,500          Special                      R       Blanket Business Personal                                       (Includi      Property                                                        ng       Locations:                                                      theft)               Location: 9 – 900 Main Campus Drive, Suite 400, Raleigh, NC 27606       Business Income - Loss of       $100,000         24 Hours       Special                             Utilities                                                       (Includi                                                                      ng                                                                       theft)              Locations: 1,2,4,5,9,10        Business Income with Extra      $18,525,000      24 Hours       Special                             Expense                                                         (Includi                                                                      ng                                                                       theft)                      IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of the       terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself for       those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                Prepared  For:                                                                             Bandwidth.com, Inc. (ATL)  Date Prepared: 10/20/2016                                                                                                                                                                                                   Venture Center III 900 Main Campus                                                                                  Arthur J. Gallagher Risk Management                                   Drive, Suite 500                               Services, Inc.                                  Raleigh, NC 27606                              1040 Crown Pointe Parkway Suite 700                                                                                  Atlanta, GA 30338                                                                         Page 3 of 15                           Location Number: #3 - 60 Hudson Street, New York, NY 10013               Subject of Insurance            Limit            Deductible     Cause        Coinsuran      Valuation                                                                       of Loss      ce %               Personal Property               $3,618,779       2,500       Special                        R                                                                    (Including                                                                    theft)                Business Income with Extra      $3,200,000       24          Special                               Expense                                          Hours       (Including                                                                    theft)                Business Income - Loss of       $100,000         24          Special                               Utilities                                        Hours       (Including                                                                    theft)                           Location Number: 9 – 900 Main Campus Drive, Suite 400, Raleigh, NC 27606       Subject of Insurance     Limit         Deductible      Cause of      Waiting Period         Valuation                                                              Loss               Loss of Utilities        $100,000      24 Hours        Special       24 Hours                                                 IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of the       terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself for       those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                Prepared  For:                                                                             Bandwidth.com, Inc. (ATL)  Date Prepared: 10/20/2016                                                                                                                                                                                                   Venture Center III 900 Main Campus                                                                                  Arthur J. Gallagher Risk Management                                   Drive, Suite 500                               Services, Inc.                                  Raleigh, NC 27606                              1040 Crown Pointe Parkway Suite 700                                                                                  Atlanta, GA 30338                                                                         Page 4 of 15                    Location Number: #13 – 1860 Blake Street, Denver, CO 80202        Subject of Insurance     Limit         Deductible            Cause of        Coinsuran      Valuation                                                                    Loss            ce %               Personal Property        $486,898      10,000                Special                        R                                                                    (Including                                                                    theft)                Business Income with     $500,000      24 Hours              Special                               Extra Expense                                                (Including                                                                    theft)                       Locations: 1, 2, 3, 4, 5, 9, 10, 12, 13               Subject of Insurance     Limit           Deductible     Cause of Loss     Waiting Period    Valuation               Flood                    $1,000,000      25,000         Flood             24 Hours                                                                                IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of the       terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself for       those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                Prepared  For:                                                                             Bandwidth.com, Inc. (ATL)  Date Prepared: 10/20/2016                                                                                                                                                                                                   Venture Center III 900 Main Campus                                                                                  Arthur J. Gallagher Risk Management                                   Drive, Suite 500                               Services, Inc.                                  Raleigh, NC 27606                              1040 Crown Pointe Parkway Suite 700                                                                                  Atlanta, GA 30338                                                                         Page 5 of 15                    Locations: 1, 2, 3, 5, 9, 10, 12, 13              Subject of Insurance     Limit           Deductible     Cause of Loss     Waiting        Valuation                                                                                 Period       Earthquake               $1,000,000      25,000         Earthquake        24 Hours                                  Location # 4 - 600 W 7th St, Los Angeles, CA 90017                Subject of Insurance     Limit           Deductible     Cause of Loss     Waiting        Valuation                                                                                 Period       Earthquake               $1,000,000      25,000         Earthquake        24 Hours                     Valuation Key: R =Replacement Cost / L = Actual Loss Sustained / C = Actual Cash Value / V = Agreed Value                                                                                            IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of the       terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself for       those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                Prepared  For:                                                                             Bandwidth.com, Inc. (ATL)  Date Prepared: 10/20/2016                                                                                                                                                                                                   Venture Center III 900 Main Campus                                                                                  Arthur J. Gallagher Risk Management                                   Drive, Suite 500                               Services, Inc.                                  Raleigh, NC 27606                              1040 Crown Pointe Parkway Suite 700                                                                                  Atlanta, GA 30338                                                                         Page 6 of 15              Coverage                   EFFECTIVE        EXPIRATION        COMPANY              POLICY          PREMIUM                                  DATE             DATE                                   NUMBER       Commercial Package         2/16/2016        2/16/2017         Federal Insurance    35951605        Included                                                                      Company               COMMERCIAL GENERAL LIABILITY                           General Aggregate                                                                                 $2,000,000                        Products/Completed Operations                   Aggregate                                         $2,000,000                         Each Occurrence                                                                                   $1,000,000                         Personal and Advertising Injury                                                                   $1,000,000                         Damage to Rented Premises Limit                                                                   $1,000,000                         Medical Expense Limit                                                                             $10,000              (Any one  person)       Coverage is written on a(n) Occurrence basis.                                    IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of the       terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself for       those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                Prepared  For:                                                                             Bandwidth.com, Inc. (ATL)  Date Prepared: 10/20/2016                                                                                                                                                                                                   Venture Center III 900 Main Campus                                                                                  Arthur J. Gallagher Risk Management                                   Drive, Suite 500                               Services, Inc.                                  Raleigh, NC 27606                              1040 Crown Pointe Parkway Suite 700                                                                                  Atlanta, GA 30338                                                                         Page 7 of 15                            EMPLOYEE BENEFITS ERRORS OR OMISSIONS                     Aggregate Limit                     $1,000,000                                                                                          Each Claim Limit                    $1,000,000                    Deductible - Each Claim Each                          $25,000             Retroactive Date                                                                                      August 29, 2011                          INFORMATION AND NETWORK TECHNOLOGY BLENDED LIABILITY                      Description                                  Limit                 Deductible       Privacy Remediation Expenses                 $1,000,000            $100,000        Product or Service Financial Injury and Technology – $2,000,000    $75,000        Related Injury Aggregate        Retroactive Date                                                   February 16,2005                            Coverage is written on a Claims Made basis.                                        IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of the       terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself for       those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                Prepared  For:                                                                             Bandwidth.com, Inc. (ATL)  Date Prepared: 10/20/2016                                                                                                                                                                                                   Venture Center III 900 Main Campus                                                                                  Arthur J. Gallagher Risk Management                                   Drive, Suite 500                               Services, Inc.                                  Raleigh, NC 27606                              1040 Crown Pointe Parkway Suite 700                                                                                  Atlanta, GA 30338                                                                         Page 8 of 15                                                                                                                                           Additional Coverages              0         0         Stop Gap-Bodily Injury By Disease-Each Employee $1,000,000                                     Limit – Washington                0         0         Stop Gap-Bodily Injury By Accident-Each Accident $1,000,000                                    Limit - Ohio               0         0         Stop Gap-Aggregate (WA and OH)               $1,000,000                                     IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of the       terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself for       those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                     Prepared  For:                                                                                  Bandwidth.com, Inc. (ATL)   Date Prepared: 10/20/2016                                                                                                                                                              Arthur J. Gallagher Risk Management                                        Venture Center III 900 Main                                                                                 Services, Inc.                                         Campus Drive, Suite 500                  1040 Crown Pointe Parkway Suite 700                                        Raleigh, NC 27606                        Atlanta, GA 30338                                                                                                                           Page 9 of 15            Coverage                   EFFECTIVE        EXPIRATION        COMPANY              POLICY          PREMIUM                                 DATE             DATE                                   NUMBER      Automobile                 2/16/2016        2/16/2017         Great Northern       73573859        $3,487.00                                                                    Insurance                                                                                                Company             BUSINESS AUTOMOBILE            $1,000,000                             Liability Limit      $1,000,000                             Uninsured Motorist      $1,000,000                             Underinsured Motorist                                             Personal Injury Protection                                             Additional PIP      $5,000                                 Auto Medical Payment                                                   $1,000                                 Comprehensive Deductible      $1,000                                 Collision Deductible                   Automobile Schedule            2006 Chevrolet Colorado #1GCCS148068150410                         IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of      the terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself      for those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                     Prepared  For:                                                                                  Bandwidth.com, Inc. (ATL)   Date Prepared: 10/20/2016                                                                                                                                                              Arthur J. Gallagher Risk Management                                        Venture Center III 900 Main                                                                                 Services, Inc.                                         Campus Drive, Suite 500                  1040 Crown Pointe Parkway Suite 700                                        Raleigh, NC 27606                        Atlanta, GA 30338                                                                                                                           Page 10 of 15                  Coverage                   Effective        Expiration        Company              Policy          Premium                                 Date             Date                                   Number      Workers Comp               2/16/2016        2/16/2017         Chubb Indemnity      71744962        $66,092.00                                                                     Insurance                                                                    Company             WORKERS COMPENSATION COVERAGE - STATUTORY            EMPLOYERS LIABILITY COVERAGE            $1,000,000                        Each Accident – Bodily Injury by Accident      $1,000,000                        Policy Limit – Bodily Injury by Disease      $1,000,000                        Each Employee – Bodily Injury by Disease            Additional Named Insureds:       Broadband , LLC               Bandwidth.com CLEC, LLC                                                  IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of      the terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself      for those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                     Prepared  For:                                                                                  Bandwidth.com, Inc. (ATL)   Date Prepared: 10/20/2016                                                                                                                                                              Arthur J. Gallagher Risk Management                                        Venture Center III 900 Main                                                                                 Services, Inc.                                         Campus Drive, Suite 500                  1040 Crown Pointe Parkway Suite 700                                        Raleigh, NC 27606                        Atlanta, GA 30338                                                                                                                           Page 11 of 15                   Coverage                  EFFECTIVE        EXPIRATION        COMPANY              POLICY          PREMIUM                                 DATE             DATE                                   NUMBER      Umbrella                   2/16/2016        2/16/2017         Federal Insurance    79878607        $12,112.00                                                                    Company                                                      COMMERCIAL UMBRELLA            $10,000,000                            Excess Coverage Other Aggregate Limit (as applicable)      $10,000,000                            Umbrella Coverages Aggregate Limit       $10,000,000                            Products Completed Operations Aggregate Limit       $10,000,000                            Advertising Injury and Personal Injury Aggregate Limit       $10,000,000                            Each Occurrence Limit                                                                          IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of      the terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself      for those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                     Prepared  For:                                                                                  Bandwidth.com, Inc. (ATL)   Date Prepared: 10/20/2016                                                                                                                                                              Arthur J. Gallagher Risk Management                                        Venture Center III 900 Main                                                                                 Services, Inc.                                         Campus Drive, Suite 500                  1040 Crown Pointe Parkway Suite 700                                        Raleigh, NC 27606                        Atlanta, GA 30338                                                                                                                           Page 12 of 15                  Coverage        EFFECTIVE DATE      EXPIRATION DATE      COMPANY           POLICY NUMBER            PREMIUM      Executive       2/16/2016          2/16/2017            Westchester        DON G25101182 003        $42,560.00      Package                                                 Fire Insurance                                                              Company                         DIRECTORS & OFFICERS AND COMPANY                          1. Limit of Liability                     a. $3,000,000 aggregate for all Loss, subject to 1b and 1c immediately below,                     b. $500,000 additional aggregate for all Loss under Insuring Clause A1, subject to 1c immediately below,                     c. $3,500,000 maximum aggregate for this Coverage Section.                           2. Retention:                   $0 each Claim under Insuring Clause 1                                            $50,000 each Claim under Insuring Clause 2                                                                                    $50,000 each Claim under Insuring Clause 3                                    IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of      the terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself      for those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                     Prepared  For:                                                                                  Bandwidth.com, Inc. (ATL)   Date Prepared: 10/20/2016                                                                                                                                                              Arthur J. Gallagher Risk Management                                        Venture Center III 900 Main                                                                                 Services, Inc.                                         Campus Drive, Suite 500                  1040 Crown Pointe Parkway Suite 700                                        Raleigh, NC 27606                        Atlanta, GA 30338                                                                                                                           Page 13 of 15                  Coverage        EFFECTIVE DATE      EXPIRATION DATE      COMPANY           POLICY NUMBER            PREMIUM      Executive       2/16/2016          2/16/2017            Westchester        DON G25101182 003        Included      Package                                                 Fire Insurance                                                              Company                         FIDUCIARY                          1 Limit of       $1,000,000 maximum aggregate for this                    . Liability      Coverage Section                    2 Retention:     $0 each Claim                    3 Continuity     11/27/2007                    . Date:                                                                  IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of      the terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself      for those details.  If in reading the policy you have any questions, please contact this office.  





 






INSURANCE SUMMARY                     Prepared  For:                                                                                  Bandwidth.com, Inc. (ATL)   Date Prepared: 10/20/2016                                                                                                                                                              Arthur J. Gallagher Risk Management                                        Venture Center III 900 Main                                                                                 Services, Inc.                                         Campus Drive, Suite 500                  1040 Crown Pointe Parkway Suite 700                                        Raleigh, NC 27606                        Atlanta, GA 30338                                                                                                                           Page 14 of 15                  Coverage        EFFECTIVE DATE      EXPIRATION DATE      COMPANY           POLICY NUMBER            PREMIUM      Executive       2/16/2016          2/16/2017            Westchester        DON G25101182 003        Included      Package                                                 Fire Insurance                                                              Company                         CRIME                                                                              Limit Of Insurance   Deductible      Insurance Agreements                                              Per Occurrence       Amount Per      1a.  Employee Theft                                               $1,000,000           Occurrence$35,000        b.  Employee Benefit Plan                                        $1,000,000           $0       c.  Client Property                                              $1,000,000           $35,000      2.    Forgery Or Alteration                                       $1,000,000           $35,000      3.    Inside The Premises Theft Of Money And Securities           $1,000,000           $35,000       4.    Inside The Premises – Robbery Or Safe Burglary Of  Other Property $1,000,000     $35,000       5.    Outside The Premises                                        $1,000,000           $35,000      6.    Computer Fraud                                              $1,000,000           $35,000      7.    Funds Transfer Fraud                                        $1,000,000           $35,000      8.    Money Orders And Counterfeit Money                          $1,000,000           $35,000                        IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of      the terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself      for those details.  If in reading the policy you have any questions, please contact this office.  





 






 INSURANCE SUMMARY                     Prepared  For:                                                                                     Bandwidth.com, Inc. (ATL)    Date Prepared: 10/20/2016                                                                                                                                                               Arthur J. Gallagher Risk Management                                         Venture Center III 900 Main                                                                                  Services, Inc.                                          Campus Drive, Suite 500                  1040 Crown Pointe Parkway Suite 700                                         Raleigh, NC 27606                        Atlanta, GA 30338                                                                                                                              Page 15 of 15                       Coverage                  EFFECTIVE      EXPIRATION       COMPANY               POLICY NUMBER          PREMIUM                            DATE           DATE  Side A DIC Directors and  2/16/2016      2/15/2017        QBE Ins.Co. (UK)      B1262F10764516         $5,000.00  Officers Liability Insurance                              Limited                                                                  Limit of Liability in the aggregate                      Insurance Agreements                     Side A DIC  D & O              $1,000,000                                     Coverage                    EFFECTIVE        EXPIRATION        COMPANY              POLICY             PREMIUM                              DATE             DATE                                   NUMBER  Employed Lawyers Liability  8/29/2016        8/29/2017         Federal Insurance    8241-2204          $6,637.00                                                                 Company                  Coverage                        Maximum Aggregate Limit of     Retentions                                          Liability           Employed Lawyers Liability      $1,000,000                     Insuring Claus3(A)- $6                                                                          Insuring Clause (B) - $5,000                                                                                  IMPORTANT:  This summary is only an outline of the insurance policy arranged through this office.  It does not include all of       the terms, coverages, exclusions, limitations, and conditions in the actual insurance contract.  You must read the policy itself       for those details.  If in reading the policy you have any questions, please contact this office.  





 






                                        BANDWIDTH.COM, INC.                       Schedule 6.19 Deposit Accounts and Securities Accounts       Entity          Bank        Acct#      Account         Type         Telephone            Address                      Name                     Type Bandwidth.com,    Square One    2003630     Business         Cash       919-314-3040    406 Blackwell Street,       Inc.                                  Checking                                   Suite 240, Durham, NC                                               STD                                              27701 Bandwidth.com,    Square One    2044605     Business         Cash       919-314-3040    406 Blackwell Street,       Inc.                                  Checking                                   Suite 240, Durham, NC                                               STD                                              27701  Bandwidth.com    Square One    2004180     Portfolio        Cash       919-314-3040    406 Blackwell Street,    CLEC LLC                                Checking I                                  Suite 240, Durham, NC                                                                                                27701  Broadband LLC    Square One    2086798     Business         Cash       919-314-3040    406 Blackwell Street,                                             Checking                                   Suite 240, Durham, NC                                               STD                                              27701 Bandwidth.com,    Square One    2204836     Business         Cash       919-314-3040    406 Blackwell Street,       Inc.                                  Checking                                   Suite 240, Durham, NC                                               STD                                              27701   IP Spectrum     Square One    2219771     Business         Cash       919-314-3040    406 Blackwell Street,  Solutions LLC                              Checking                                   Suite 240, Durham, NC                                               STD                                              27701  Broadband LLC    Square One    2088755      Money       ACH Facility   919-314-3040    406 Blackwell Street,                                              Market       Security for                 Suite 240, Durham, NC                                            Collateralize  Collateral                           27701 Bandwidth.com,    Square One    2005676      Money       ACH Facility   919-314-3040    406 Blackwell Street,       Inc.                                   Market       Security for                 Suite 240, Durham, NC                                            Collateralize  Collateral                           27701 Bandwidth.com,    Square One    2006039      Money         Letter of    919-314-3040    406 Blackwell Street,       Inc.                                   Market        Credit for                  Suite 240, Durham, NC                                            Collateralize  State of AZ                          27701 Bandwidth.com,    Square One    2006633      Money        Credit Card   919-314-3040    406 Blackwell Street,       Inc.                                   Market       Security for                 Suite 240, Durham, NC                                            Collateralize  Collateral                           27701 Bandwidth.com,    Square One    2093596      Money         Letter of    919-314-3040    406 Blackwell Street,       Inc.                                   Market        Credit for                  Suite 240, Durham, NC                                            Collateralize  State of TN                          27701 Bandwidth.com,    Square One    2098643      Money         Letter of    919-314-3040    406 Blackwell Street,       Inc.                                   Market        Credit for                  Suite 240, Durham, NC                                            Collateralize     Rent                              27701                                                           Collateral Bandwidth.com,      Fidelity     Plan      Retirement        401k        1-800-294-       100 Salem Street,       Inc.                       20295       Savings      Forfeitures      4015         Smithfield, RI 02917                    (excluded                    pursuant to                     Section                     5.21(c)) Bandwidth.com,       UBS          EA       UBS Bank          Cash       919-967-2451    317 W. Barbee Chapel       Inc.                       05467      Account                                    Hill Road, Chapel Hill,                    (excluded                                                                 NC 27517                    pursuant to                     Section                     5.21(c))                                                        S-21 





 






                            BANDWIDTH.COM, INC.                            Schedule 7.4 Pledged Notes  Maker                                 Note, Date and Principal Amount  Chad Sattler                          Promissory Note, dated as of December 28,                                       2015, in the aggregate principal amount of                                       $31,700.00 Kristin Oliver                        Promissory Note, dated as of June 24, 2016,                                       in the aggregate principal amount of                                       $6,400.00 Brandon Trollip                       Promissory Note, dated as of June 27, 2016,                                       in the aggregate principal amount of                                       $32,200.00 Brian Randall                         Promissory Note, dated as of June 28, 2016,                                       in the aggregate principal amount of                                       $32,200.00 Larry Lamont Morris                   Promissory Note, dated as of June 29, 2016,                                       in the aggregate principal amount of                                       $1,288.00 Kade Ross                             Promissory Note, dated as of June 30, 2016,                                       in the aggregate principal amount of                                       $64,400.00                                        S-22 





 






                            BANDWIDTH.COM, INC.                         Schedule 7.5 Commercial Tort Claims None.                                        S-23 





 






                                     EXHIBIT A                                    FORM OF                            REVOLVING CREDIT NOTE   $___________                                                    ________, 20__          FOR  VALUE  RECEIVED,  the  undersigned,  BANDWIDTH  INC.,  a  Delaware  corporation  (the  “Borrower”),  promises  to  pay,  on  the last  day  of  the  Commitment  Period,  as  defined in the Credit Agreement (as hereinafter defined), to the order of _________ (“Lender”)  at the main office of KEYBANK NATIONAL ASSOCIATION, as the Administrative Agent, as  hereinafter defined, 127 Public Square, Cleveland, Ohio 44114-1306 the principal sum of    _______________________________ AND 00/100 ..................................................... DOLLARS    or  the  aggregate  unpaid  principal  amount  of  all  Revolving  Loans,  as  defined  in  the  Credit  Agreement, made by Lender to the Borrower pursuant to Section 2.2(a) of the Credit Agreement,  whichever is less, in lawful money of the United States.          As  used  herein,  “Credit  Agreement”  means  the  Credit  and  Security  Agreement  dated  November  4,  2016,  as  amended  and  restated  as  of  March  1,  2019,  among  the  Borrower,  the  Lenders, as defined therein, and KeyBank National Association, as the administrative agent for  the  Lenders  (the  “Administrative  Agent”),  as  the  same  may  from  time  to  time  be  amended,  restated or otherwise modified.  Each capitalized term used herein that is defined in the Credit  Agreement and not otherwise defined herein shall have the meaning ascribed to it in the Credit  Agreement.          The  Borrower  also  promises  to  pay  interest  on  the  unpaid  principal  amount  of  each  Revolving Loan from time to time outstanding, from the date of such Revolving Loan until the  payment in full thereof, at the rates per annum that shall be determined in accordance with the  provisions of Section 2.4(a) of the Credit Agreement.  Such interest shall be payable on each date  provided  for  in  such  Section  2.4(a);  provided  that  interest  on  any  principal  portion  that  is  not  paid when due shall be payable on demand.          The portions of the principal sum hereof from time to time representing Base Rate Loans  and  Eurodollar  Loans,  interest  owing  thereon  and  payments  of  principal  and  interest  of  any  thereof,  shall  be  shown  on  the  records  of  Lender  by  such  method  as  Lender  may  generally  employ; provided that failure to make any such entry shall in no way detract from the obligations  of the Borrower under this Note or the Credit Agreement.          If this Note shall not be paid at maturity, whether such maturity occurs by reason of lapse  of  time  or  by  operation  of  any  provision  for  acceleration  of  maturity  contained  in  the  Credit  Agreement, the principal hereof and the unpaid interest thereon shall bear interest, pursuant to  the terms of the Credit Agreement, until paid, at a rate per annum equal to the Default Rate.  All  payments of principal of and interest on this Note shall be made in immediately available funds.                                           E-1  





 






         This Note is one of the Revolving Credit Notes referred to in the Credit Agreement and is  entitled to the benefits thereof.  Reference is made to the Credit Agreement for a description of  the  right  of  the  undersigned  to  anticipate  payments  hereof,  the  right  of  the  holder  hereof  to  declare this Note due prior to its stated maturity, and other terms and conditions upon which this  Note is issued.          Except  as  expressly  provided  in  the  Credit  Agreement,  the  Borrower  expressly  waives  presentment,  demand,  protest  and  notice  of  any  kind.   This  Note  shall  be  governed  by  and  construed in accordance with the laws of the State of New York.          JURY  TRIAL  WAIVER.   THE  BORROWER,  TO  THE  EXTENT  PERMITTED  BY  LAW, HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING  ANY  DISPUTE,  WHETHER  SOUNDING  IN  CONTRACT,  TORT  OR  OTHERWISE,  AMONG THE BORROWER, THE ADMINISTRATIVE AGENT AND THE  LENDERS, OR  ANY  THEREOF,  ARISING  OUT  OF,  IN  CONNECTION  WITH,  RELATED  TO,  OR  INCIDENTAL  TO  THE  RELATIONSHIP  ESTABLISHED  AMONG  THEM  IN  CONNECTION  WITH  THIS  NOTE  OR  ANY  OTHER  NOTE  OR  INSTRUMENT,  DOCUMENT  OR  AGREEMENT  EXECUTED  OR  DELIVERED  IN  CONNECTION  HEREWITH OR THE TRANSACTIONS RELATED THERETO.                                           BANDWIDTH INC.                                                                                  By:                                          Name:                                          Title:                                                                                   E-2  





 






                                     EXHIBIT B                                    FORM OF                                SWING LINE NOTE    $1,000,000                                                      _____ ___, 20__          FOR  VALUE  RECEIVED,  the  undersigned,  BANDWIDTH  INC.,  a  Delaware  corporation  (the  “Borrower”),  promises  to  pay  to  the  order  of  KEYBANK  NATIONAL  ASSOCIATION  (the  “Swing  Line  Lender”)  at  the  main  office  of  KEYBANK  NATIONAL  ASSOCIATION,  as  the  Administrative  Agent,  as  hereinafter  defined,  127  Public  Square,  Cleveland, Ohio 44114-1306 the principal sum of    _______________________________ AND 00/100 ..................................................... DOLLARS    or the aggregate unpaid principal amount of all Swing Loans, as defined in the Credit Agreement  (as  hereinafter defined),  made by  the Swing  Line  Lender  to  the  Borrower  pursuant  to  Section  2.2(c) of the Credit Agreement, whichever is less, in lawful money of the United States on the  earlier of the last day of the applicable Commitment Period, as defined in the Credit Agreement,  or, with respect to each Swing Loan, the Swing Loan Maturity Date applicable thereto          As  used  herein,  “Credit  Agreement”  means  the  Credit  and  Security  Agreement  dated  November  4,  2016,  as  amended  and  restated  as  of  March  1,  2019,  among  the  Borrower,  the  Lenders, as defined therein, and KeyBank National Association, as the administrative agent for  the  Lenders  (the  “Administrative  Agent”),  as  the  same  may  from  time  to  time  be  amended,  restated or otherwise modified.  Each capitalized term used herein that is defined in the Credit  Agreement and not otherwise defined herein shall have the meaning ascribed to it in the Credit  Agreement.          The Borrower also promises to pay interest on the unpaid principal amount of each Swing  Loan from time to time outstanding, from the date of such Swing Loan until the payment in full  thereof,  at  the  rates  per  annum  that  shall  be  determined  in  accordance  with  the  provisions  of  Section 2.4(b) of the Credit Agreement.  Such interest shall be payable on each date provided for  in such Section 2.4(b); provided that interest on any principal portion that is not paid when due  shall be payable on demand.          The principal sum hereof from time to time, and the payments of principal and interest  thereon, shall be shown on the records of the Swing Line Lender by such method as the Swing  Line Lender may generally employ; provided that failure to make any such entry shall in no way  detract from the obligations of the Borrower under this Note or the Credit Agreement.          If this Note shall not be paid at maturity, whether such maturity occurs by reason of lapse  of  time  or  by  operation  of  any  provision  for  acceleration  of  maturity  contained  in  the  Credit  Agreement, the principal hereof and the unpaid interest thereon shall bear interest, pursuant to  the terms of the Credit Agreement, until paid, at a rate per annum equal to the Default Rate.  All  payments of principal of and interest on this Note shall be made in immediately available funds.                                        E-3  





 






         This Note is the Swing Line Note referred to in the Credit Agreement and is entitled to  the benefits thereof.  Reference is made to the Credit Agreement for a description of the right of  the undersigned to anticipate payments hereof, the right of the holder hereof to declare this Note  due prior to its stated maturity, and other terms and conditions upon which this Note is issued.          Except  as  expressly  provided  in  the  Credit  Agreement,  the  Borrower  expressly  waives  presentment,  demand,  protest  and  notice  of  any  kind.   This  Note  shall  be  governed  by  and  construed in accordance with the laws of the State of New York.          JURY  TRIAL  WAIVER.   THE  BORROWER,  TO  THE  EXTENT  PERMITTED  BY  LAW, HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING  ANY  DISPUTE,  WHETHER  SOUNDING  IN  CONTRACT,  TORT  OR  OTHERWISE,  AMONG THE BORROWER, THE ADMINISTRATIVE AGENT AND THE  LENDERS, OR  ANY  THEREOF,  ARISING  OUT  OF,  IN  CONNECTION  WITH,  RELATED  TO,  OR  INCIDENTAL  TO  THE  RELATIONSHIP  ESTABLISHED  AMONG  THEM  IN  CONNECTION  WITH  THIS  NOTE  OR  ANY  OTHER  NOTE  OR  INSTRUMENT,  DOCUMENT  OR  AGREEMENT  EXECUTED  OR  DELIVERED  IN  CONNECTION  HEREWITH OR THE TRANSACTIONS RELATED THERETO.                                           BANDWIDTH INC.                                                                                  By:                                          Name:                                          Title:                                              E-4  





 






                                     EXHIBIT C                                    FORM OF                                   TERM NOTE   $____________                                                ________ ___, 20__            FOR  VALUE  RECEIVED,  the  undersigned,  BANDWIDTH  INC.,  a  Delaware  corporation (the “Borrower”), promises to pay to the order of _________ (“Lender”) at the main  office of KEYBANK NATIONAL ASSOCIATION, as the Administrative Agent, as hereinafter  defined, 127 Public Square, Cleveland, Ohio 44114-1306 the principal sum of    _______________________________ AND 00/100 ..................................................... DOLLARS    in lawful money of the United States in consecutive principal payments as set forth in the Credit  Agreement (as hereinafter defined).          As  used  herein,  “Credit  Agreement”  means  the  Credit  and  Security  Agreement  dated  November  4,  2016,  as  amended  and  restated  as  of  March  1,  2019,  among  the  Borrower,  the  Lenders, as defined therein, and KeyBank National Association, as the administrative agent for  the  Lenders  (the  “Administrative  Agent”),  as  the  same  may  from  time  to  time  be  amended,  restated or otherwise modified.  Each capitalized term used herein that is defined in the Credit  Agreement and not otherwise defined herein shall have the meaning ascribed to it in the Credit  Agreement.          The Borrower also promises to pay interest on the unpaid principal amount of the Term  Loan from time to time outstanding, from the date of the Term Loan until the payment in full  thereof,  at  the  rates  per  annum  that  shall  be  determined  in  accordance  with  the  provisions  of  Section 2.4(c) of the Credit Agreement.  Such interest shall be payable on each date provided for  in such Section 2.4(c); provided that interest on any principal portion that is not paid when due  shall be payable on demand.          The portions of the principal sum hereof from time to time representing Base Rate Loans  and  Eurodollar  Loans,  interest  owing  thereon,  and  payments  of  principal  and  interest  of  any  thereof,  shall  be  shown  on  the  records  of  Lender  by  such  method  as  Lender  may  generally  employ; provided that failure to make any such entry shall in no way detract from the obligations  of the Borrower under this Note or the Credit Agreement.          If this Note shall not be paid at maturity, whether such maturity occurs by reason of lapse  of  time  or  by  operation  of  any  provision  for  acceleration  of  maturity  contained  in  the  Credit  Agreement, the principal hereof and the unpaid interest thereon shall bear interest, pursuant to  the terms of the Credit Agreement, until paid, at a rate per annum equal to the Default Rate.  All  payments of principal of and interest on this Note shall be made in immediately available funds.                                         E-5  





 






         This Note is one of the Term Notes referred to in the Credit Agreement and is entitled to  the benefits thereof.  Reference is made to the Credit Agreement for a description of the right of  the undersigned to anticipate payments hereof, the right of the holder hereof to declare this Note  due prior to its stated maturity, and other terms and conditions upon which this Note is issued.          Except  as  expressly  provided  in  the  Credit  Agreement,  the  Borrower  expressly  waives  presentment,  demand,  protest  and  notice  of  any  kind.   This  Note  shall  be  governed  by  and  construed in accordance with the laws of the State of New York.          JURY  TRIAL  WAIVER.   THE  BORROWER,  TO  THE  EXTENT  PERMITTED  BY  LAW, HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING  ANY  DISPUTE,  WHETHER  SOUNDING  IN  CONTRACT,  TORT  OR  OTHERWISE,  AMONG THE BORROWER, THE ADMINISTRATIVE AGENT AND THE  LENDERS, OR  ANY  THEREOF,  ARISING  OUT  OF,  IN  CONNECTION  WITH,  RELATED  TO,  OR  INCIDENTAL  TO  THE  RELATIONSHIP  ESTABLISHED  AMONG  THEM  IN  CONNECTION  WITH  THIS  NOTE  OR  ANY  OTHER  NOTE  OR  INSTRUMENT,  DOCUMENT  OR  AGREEMENT  EXECUTED  OR  DELIVERED  IN  CONNECTION  HEREWITH OR THE TRANSACTIONS RELATED THERETO.                                           BANDWIDTH INC.                                                                                  By:                                          Name:                                          Title:                                                                                     E-6  





 






                                     EXHIBIT D                                    FORM OF                                NOTICE OF LOAN                                                   _______________________, 20____   KeyBank National Association, as the Administrative Agent  127 Public Square  Cleveland, Ohio 44114  Attention:  Institutional Bank  Ladies and Gentlemen:          The undersigned, BANDWIDTH INC., a Delaware corporation, (the “Borrower”), refers  to the Credit and Security Agreement dated November 4, 2016, as amended and restated as of  March 1, 2019, (as the same may from time to time be amended, restated or otherwise modified,  the “Credit Agreement”, the terms defined therein being used herein as therein defined), among  the undersigned, the Lenders, as defined in the Credit Agreement, and KEYBANK NATIONAL  ASSOCIATION, as the administrative agent for the Lenders (the “Administrative Agent”), and  hereby  gives  you  notice,  pursuant  to  Section  2.6  of  the  Credit  Agreement  that  the  Borrower  hereby requests [a Loan (the “Proposed Loan”)][an interest change with respect to a portion of a  Term Loan (the “Term Loan Interest Change”)], and in connection therewith sets forth below the  information relating to the [Proposed Loan][Term Loan Interest Change] as required by Section  2.6 of the Credit Agreement:          (a)   The  Business  Day  of  the  [Proposed  Loan][Term  Loan  Interest  Change]  is              __________, 20__.          (b)   The  amount  of  the  [Proposed  Loan][Term  Loan  Interest  Change]  is              $_______________.          (c)   The [Proposed Loan is to be][Term Loan Interest Change is for]:             a Revolving Loan ____ / the Term Loan ___.  (Check one.)          (d)   The [Proposed Loan][Term Loan Interest Change] is to be a Base Rate Loan ____              / Eurodollar Loan ___ / Swing Loan_____.  (Check one.)          (e)   If  the  [Proposed  Loan][Term  Loan  Interest  Change]  is  a  Eurodollar  Loan,  the              Interest Period requested is one month ___, two months ___, three months ___,              six months ____.  (Check one.)    The undersigned hereby certifies on behalf of the Borrower that the following statements are true  on  the  date  hereof,  and  will  be  true  on  the  date  of  the  [Proposed  Loan][Term  Loan  Interest  Change]:                (i)  the representations and warranties contained in each Loan Document are        true and correct in all material respects as if made on and as of the date hereof, except to        the  extent  that  any  thereof  expressly  relate  to  an  earlier  date,  before  and  after  giving                                        E-7  





 






                effect  to  the  [Proposed  Loan][Term  Loan  Interest  Change]  and  the  application  of  the  proceeds therefrom, as though made on and as of such date;          (ii)  no  event  has  occurred  and  is  continuing,  or  would  result  from  such  [Proposed Loan][Term Loan Interest Change], or the application of proceeds therefrom,  that constitutes a Default or Event of Default; and          (iii)  the  conditions  set  forth  in  Section  2.6  and  Article  IV  of  the  Credit  Agreement have been satisfied.                                     BANDWIDTH INC.                                                                      By:                                    Name:                                    Title:                                                                                                          E-8  





 






                                     EXHIBIT E                                    FORM OF                           COMPLIANCE CERTIFICATE                                        For Fiscal Quarter ended ____________________    THE UNDERSIGNED HEREBY CERTIFIES THAT:          (1)   I am the duly appointed [Chief Executive Officer] [President] or [Chief Financial  Officer] of BANDWIDTH INC., a Delaware corporation (the “Borrower”);          (2)   I am familiar with the terms of that certain Credit and Security Agreement dated  November  4,  2016,  as  amended  and  restated  as  of  March  1,  2019,  among  the  Borrower,  the  lenders  party  thereto  (together  with  their  respective  successors  and  permitted  assigns,  collectively, the “Lenders”), as defined in the Credit Agreement, and KEYBANK NATIONAL  ASSOCIATION, as the Administrative Agent (as the same may from time to time be amended,  restated  or  otherwise  modified,  the  “Credit  Agreement”,  the  terms  defined  therein  being  used  herein as therein defined), and the terms of the other Loan Documents, and I have made, or have  caused to be made under my supervision, a review in reasonable detail of the transactions and  condition  of  the  Borrower  and  its  Subsidiaries  during  the  accounting  period  covered  by  the  attached financial statements;          (3)   The  review  described  in  paragraph  (2)  above  did  not  disclose,  and  I  have  no  knowledge of, the existence of any condition or event that constitutes or constituted a Default or  Event of Default, at the end of the accounting period covered by the attached financial statements  or as of the date of this Certificate;          (4)   The representations and warranties made by the Borrower contained in each Loan  Document  are  true  and  correct  in  all  material  respects  as  though  made  on  and  as  of  the  date  hereof (except for those representations and warranties that relate to a specific date); and          (5)   Set  forth  on  Attachment  I  hereto  are  calculations  of  the  financial  covenants  set  forth in Section 5.7 of the Credit Agreement, which calculations show compliance with the terms  thereof.          IN  WITNESS  WHEREOF,  I  have  signed  this  certificate  the  ___  day  of  _________,  20___.                                           BANDWIDTH INC.                                                                                  By:                                          Name:                                          Title:                                                                                                                            E-9  





 






                                     EXHIBIT F                                    FORM OF                  ASSIGNMENT AND ACCEPTANCE AGREEMENT                                                 This  Assignment  and  Acceptance  Agreement  (this  “Assignment  Agreement”)  between  ______________________ (the “Assignor”) and ______________________ (the “Assignee”) is  dated as of __________ ___, 20___.  The parties hereto agree as follows:          1.   Preliminary Statement.  Assignor is a party to a Credit and Security Agreement  dated November 4, 2016, as amended and restated as of March 1, 2019 (as the same may from  time  to  time  be  amended,  restated  or  otherwise  modified,  the  “Credit  Agreement”),  among  Bandwidth  Inc.,  a  Delaware  corporation  (the  “Borrower”),  the  lenders  party  thereto  (together  with their respective successors and assigns, collectively, the “Lenders” and, individually, each a  “Lender”),  and  KEYBANK  NATIONAL  ASSOCIATION,  as  the  administrative  agent  for  the  Lenders (the “Administrative Agent”).  Capitalized terms used herein and not otherwise defined  herein shall have the meanings attributed to them in the Credit Agreement.            2.   Assignment and Assumption.  Assignor hereby sells and assigns to Assignee, and  Assignee hereby purchases and assumes from Assignor, an interest in and to Assignor’s rights  and obligations under the Credit Agreement, effective as of the Assignment Effective Date (as  hereinafter defined), equal  to the percentage interest  specified  on Annex 1 hereto  (hereinafter,  the “Assigned Percentage”) of Assignor’s right, title and interest in and to (a) the Commitment,  (b)  any  Loan  made  by  Assignor  that  is  outstanding  on  the  Assignment  Effective  Date,  (c)  Assignor’s interest in any Letter of Credit outstanding on the Assignment Effective Date, (d) any  Note delivered to Assignor pursuant to the Credit Agreement, and (e) the Credit Agreement and  the other Related Writings.  After giving effect to such sale and assignment and on and after the  Assignment  Effective  Date,  Assignee  shall  be  deemed  to  have  one  or  more  Applicable  Commitment  Percentages  under  the  Credit  Agreement  equal  to  the  Applicable  Commitment  Percentages set forth in subparts II.A and II.B on Annex 1 hereto and an Assigned Amount as set  forth on subparts I.A and I.B of Annex 1 hereto (hereinafter, the “Assigned Amount”).          3.   Assignment  Effective  Date.   The  Assignment  Effective  Date  (the  “Assignment  Effective  Date”)  shall  be  [__________  __,  ____]  (or  such  other  date  agreed  to  by  the  Administrative Agent).  On or prior to the Assignment Effective Date, Assignor shall satisfy the  following conditions:          (a)   receipt  by  the  Administrative  Agent  of   this  Assignment  Agreement,  including  Annex 1 hereto, properly executed by Assignor and Assignee and accepted and consented to by  the Administrative Agent and, if necessary pursuant to the provisions of Section 11.10(b) of the  Credit Agreement, by the Borrower;           (b)   receipt by  the Administrative Agent  from Assignor of a fee of Three Thousand  Five Hundred Dollars ($3,500), if required by Section 11.10(d) of the Credit Agreement;           (c)   receipt  by  the  Administrative  Agent  from  Assignee  of  an  administrative  questionnaire, or other similar document, which shall include (i) the address for notices under the                                         E-10  





 






   Credit  Agreement,  (ii)  the  address  of  its  Lending  Office,  (iii)  wire  transfer  instructions  for  delivery  of  funds  by  the  Administrative  Agent,  and  (iv)  such  other  information  as  the  Administrative Agent shall request; and          (d)   receipt  by  the  Administrative  Agent  from  Assignor  or  Assignee  of  any  other  information required pursuant to Section 11.10 of the Credit Agreement or otherwise necessary  to complete the transaction contemplated hereby.          4.   Payment  Obligations.   In  consideration  for  the  sale  and  assignment  of  Loans  hereunder, Assignee shall pay to Assignor, on the Assignment Effective Date, the amount agreed  to  by  Assignee  and  Assignor.   Any  interest,  fees  and  other  payments  accrued  prior  to  the  Assignment  Effective  Date  with  respect  to  the  Assigned  Amount  shall  be  for  the  account  of  Assignor.  Any interest, fees and other payments accrued on and after the Assignment Effective  Date  with  respect  to  the  Assigned  Amount  shall  be  for  the  account  of  Assignee.   Each  of  Assignor and Assignee agrees that it  will hold in trust for the other party any interest, fees or  other amounts which it may receive to which the other party is entitled pursuant to the preceding  sentence  and  to  pay  the  other  party  any  such  amounts  which  it  may  receive  promptly  upon  receipt thereof.          5.   Credit  Determination;  Limitations  on  Assignor’s  Liability.   Assignee  represents  and warrants to Assignor, the Borrower, the Administrative Agent and the Lenders (a) that it is  capable of making and has made and shall continue to make its own credit determinations and  analysis based upon such information as Assignee deemed sufficient to enter into the transaction  contemplated  hereby  and  not  based  on  any  statements  or  representations  by  Assignor;  (b)  Assignee confirms that it meets the requirements to be an assignee as set forth in Section 11.10  of the Credit Agreement; (c) Assignee confirms that it is able to fund the Loans and the Letters  of  Credit  as  required  by  the  Credit  Agreement;  (d)  Assignee  agrees  that  it  will  perform  in  accordance with their terms all of the obligations which by the terms of the Credit Agreement  and the other Related Writings are required to be performed by it as a Lender thereunder; and (e)  Assignee represents that it has reviewed each of the Loan Documents and by its signature to this  Assignment Agreement,  agrees to be bound by and subject to the terms  and conditions of the  Loan  Documents  as  if  it  were  an  original  party  thereto.   It  is  understood  and  agreed  that  the  assignment and assumption hereunder are made without recourse to Assignor and that Assignor  makes no representation or warranty of any kind to Assignee and shall not be responsible for (i)  the due execution, legality, validity, enforceability, genuineness, sufficiency or collectability of  the  Credit  Agreement  or  any  other  Related  Writings,  (ii)  any  representation,  warranty  or  statement  made  in  or  in  connection  with  the  Credit  Agreement  or  any  of  the  other  Related  Writings, (iii) the financial  condition or creditworthiness of the Borrower or any Guarantor of  Payment, (iv) the performance of or compliance with any of the terms or provisions of the Credit  Agreement or any of the other Related Writings, (v) the inspection of any of the property, books  or  records  of  the  Borrower,  or  (vi)  the  validity,  enforceability,  perfection,  priority,  condition,  value  or sufficiency  of any  collateral  securing  or  purporting  to  secure  the  Loans  or  Letters  of  Credit.  Neither Assignor nor any of its officers, directors, employees, agents or attorneys shall  be liable for any mistake, error of judgment, or action taken or omitted to be taken in connection  with the Loans, the Letters of Credit, the Credit Agreement or the other Related Writings, except  for  its  or  their  own  gross  negligence  or  willful  misconduct.   Assignee  appoints  the                                         E-11  





 






   Administrative  Agent  to  take  such  action  as  agent  on  its  behalf  and  to  exercise  such  powers  under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof.            6.   Indemnity.  Assignee agrees to indemnify and hold harmless Assignor against any  and  all  losses,  cost  and  expenses  (including,  without  limitation,  attorneys’  fees)  and  liabilities  incurred by Assignor in connection with or arising in any manner from Assignee’s performance  or non-performance of obligations assumed under this Assignment Agreement.          7.   Subsequent  Assignments.   After  the  Assignment  Effective  Date,  Assignee  shall  have the right, pursuant to Section 11.10 of the Credit Agreement, to assign the rights which are  assigned  to  Assignee  hereunder,  provided  that  (a)  any  such  subsequent  assignment  does  not  violate  any  of  the  terms  and  conditions  of  the  Credit  Agreement,  any  of  the  other  Related  Writings, or any law, rule, regulation, order, writ, judgment, injunction or decree and that any  consent required under the terms of the Credit Agreement or any of the other Related Writings  has been obtained, (b) the assignee under such assignment from Assignee shall agree to assume  all of Assignee’s obligations hereunder in a manner satisfactory to Assignor, and (c) Assignee is  not thereby released from any of its obligations to Assignor hereunder.          8.   Reductions of Aggregate Amount of Commitments.  If any reduction in the Total  Commitment  Amount  occurs  between  the  date  of  this  Assignment  Agreement  and  the  Assignment  Effective  Date,  the  percentage  of  the  Total  Commitment  Amount  assigned  to  Assignee shall remain the percentage specified in Section 1 hereof and the dollar amount of the  Commitment  of  Assignee  shall  be  recalculated  based  on  the  reduced  Total  Commitment  Amount.          9.   Acceptance  of  Administrative  Agent;  Notice  by  Assignor.   This  Assignment  Agreement is conditioned upon the acceptance and consent of the Administrative Agent and, if  necessary pursuant to Section 11.10 of the Credit Agreement, upon the acceptance and consent  of  the  Borrower;  provided  that  the  execution  of  this  Assignment  Agreement  by  the  Administrative  Agent  and,  if  necessary,  by  the  Borrower  is  evidence  of  such  acceptance  and  consent.          10.  Entire Agreement.  This Assignment Agreement embodies  the entire agreement  and  understanding  between  the  parties  hereto  and  supersedes  all  prior  agreements  and  understandings between the parties hereto relating to the subject matter hereof.          11.  Governing Law.  This Assignment Agreement shall be governed by the laws of  the State of New York.          12.  Notices.  Notices shall be given under this Assignment Agreement in the manner  set forth in the Credit Agreement.  For the purpose hereof, the addresses of the parties hereto  (until notice of a change is delivered) shall be the address set forth under each party’s name on  the signature pages hereof.          13.  Counterparts.   This  Assignment  Agreement  may  be  executed  in  any  number  of  counterparts, by different parties hereto in separate counterparts and by facsimile signature, each                                         E-12  





 






   of  which  when  so  executed  and  delivered  shall  be  deemed  to  be  an  original  and  all  of which  taken together shall constitute but one and the same agreement.                         [Remainder of page intentionally left blank.]                                         E-13  





 






         JURY  TRIAL  WAIVER.   EACH  OF  THE  UNDERSIGNED,  TO  THE  EXTENT  PERMITTED  BY  LAW,  WAIVES  ANY  RIGHT  TO  HAVE  A  JURY  PARTICIPATE  IN  RESOLVING  ANY  DISPUTE,  WHETHER  SOUNDING  IN  CONTRACT,  TORT,  OR  OTHERWISE, AMONG THE ADMINISTRATIVE AGENT, ANY OF THE LENDERS, AND  THE  BORROWER,  OR  ANY  THEREOF,  ARISING  OUT  OF,  IN  CONNECTION  WITH,  RELATED  TO,  OR  INCIDENTAL  TO  THE  RELATIONSHIP  ESTABLISHED  AMONG  THEM IN CONNECTION WITH THIS ASSIGNMENT AGREEMENT OR ANY NOTE OR  OTHER AGREEMENT, INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN  CONNECTION THEREWITH OR THE TRANSACTIONS RELATED HERETO.          IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement  by their duly authorized officers as of the date first above written.                                           [NAME OF THE ASSIGNOR]                                           Address:                                                                              Attn:                           By:          Phone:                          Name:          Fax:                            Title:                                                                                   [NAME OF THE ASSIGNEE]                                           Address:                                                                              Attn:                           By:          Phone:                          Name:          Fax:                            Title:                                            Accepted and Consented to this ___ day Accepted and Consented to this ___ day  of ___, 20__:                          of _______, 20__:                                           KEYBANK NATIONAL ASSOCIATION           BANDWIDTH INC.     as the Administrative Agent                                                    By:                                    By:   Name:                                  Name:   Title:                                 Title:                                            E-14  





 






                                     ANNEX 1                                       TO                  ASSIGNMENT AND ACCEPTANCE AGREEMENT        On and after the Assignment Effective Date, after giving effect to all other assignments  being made by Assignor on the Assignment Effective Date, the Commitment of Assignee, and, if  this is less than an assignment of all of Assignor’s interest, Assignor, shall be as follows:    I.    INTEREST BEING ASSIGNED TO ASSIGNEE          A.    Revolving Credit Commitment             Applicable Commitment Percentage of                     Revolving Credit Commitment              __________%              Assigned Amount                                $__________                B.   Term Loan Commitment             Applicable Commitment Percentage of                     Term Loan Commitment                     __________%             Assigned Amount                                 $__________    II.  ASSIGNEE’S COMMITMENT (as of the Assignment Effective Date)          A.    Revolving Credit Commitment             Applicable Commitment Percentage of                     Revolving Credit Commitment              __________%              Assigned Amount                                $__________                B.   Term Loan Commitment             Applicable Commitment Percentage of                     Term Loan Commitment                     __________%             Assigned Amount                                 $__________    III.  ASSIGNOR’S COMMITMENT  (as of the Assignment Effective Date)          A.    Revolving Credit Commitment             Applicable Commitment Percentage of                     Revolving Credit Commitment              __________%              Assigned Amount                                $__________                B.   Term Loan Commitment             Applicable Commitment Percentage of                     Term Loan Commitment                     __________%             Assigned Amount                                 $__________                                         E-15  





 






                                    EXHIBIT G-1                                    FORM OF                        U.S. TAX COMPLIANCE CERTIFICATE                                              (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)                                                 Reference is hereby made to that certain Credit and Security Agreement dated November  4,  2016,  as  amended  and  restated  as  of  March  1,  2019  (the  “Credit  Agreement”),  among  Bandwidth Inc., a Delaware corporation (the “Borrower”), the Lenders, as defined therein, and  KeyBank National Association, as the administrative agent for the Lenders (the “Administrative  Agent”).                  Pursuant  to  the  provisions  of  Section  3.2  of  the  Credit  Agreement,  the  undersigned  hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any  Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) it is not a  bank within the meaning of Section 881(c)(3)(A) of the Code, (c) it is not a ten percent (10%)  shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it  is  not  a  controlled  foreign  corporation  related  to  the  Borrower  as  described  in  Section  881(c)(3)(C) of the Code.                The  undersigned  has  furnished  the  Administrative  Agent  and  the  Borrower  with  a  certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the  undersigned  agrees  that  (i)  if  the  information  provided  on  this  certificate  changes,  the  undersigned shall promptly so inform the Borrower and the Administrative Agent, and (ii) the  undersigned shall have at all times furnished the Borrower and the Administrative Agent with a  properly completed and currently effective certificate in either the calendar year in which each  payment is to be made to the undersigned, or in either of the two calendar years preceding such  payments.                       Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.    [NAME OF LENDER]    By:                                             Name:        Title:    Date: ________ __, 20[  ]                                         E-16  





 






                                    EXHIBIT G-2                                    FORM OF                       U.S. TAX COMPLIANCE CERTIFICATE                                             (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)                Reference is hereby made to that certain Credit and Security Agreement dated November  4,  2016,  as  amended  and  restated  as  of  March  1,  2019  (the  “Credit  Agreement”),  among  Bandwidth Inc., a Delaware corporation (the “Borrower”), the Lenders, as defined therein, and  KeyBank National Association, as the administrative agent for the Lenders (the “Administrative  Agent”).                  Pursuant  to  the  provisions  of  Section  3.2  of  the  Credit  Agreement,  the  undersigned  hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of  which  it  is  providing  this  certificate,  (b)  it  is  not  a  bank  within  the  meaning  of  Section  881(c)(3)(A) of the Code, (c) it is not a ten percent (10%) shareholder of the Borrower within the  meaning of Section 871(h)(3)(B) of the Code, and (d) it is not a controlled foreign corporation  related to the Borrower as described in Section 881(c)(3)(C) of the Code.          The undersigned has furnished its participating Lender with a certificate of its non-U.S.  Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that  (i)  if  the  information  provided  on  this  certificate  changes,  the  undersigned  shall  promptly  so  inform  such  Lender  in  writing,  and  (ii)  the  undersigned  shall  have  at  all  times  furnished  such  Lender with a properly completed and currently effective certificate in either the calendar year in  which  each  payment  is  to  be  made  to  the  undersigned,  or  in  either  of  the  two  calendar  years  preceding such payments.                      Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.          [NAME OF PARTICIPANT]    By:                                             Name:        Title:    Date: ________ __, 20[  ]                                         E-17  





 






                                    EXHIBIT G-3                                    FORM OF                       U.S. TAX COMPLIANCE CERTIFICATE                                              (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)                                                 Reference is hereby made to that certain Credit and Security Agreement dated November  4,  2016,  as  amended  and  restated  as  of  March  1,  2019  (the  “Credit  Agreement”),  among  Bandwidth Inc., a Delaware corporation (the “Borrower”), the Lenders, as defined therein, and  KeyBank National Association, as the administrative agent for the Lenders (the “Administrative  Agent”).                  Pursuant  to  the  provisions  of  Section  3.2  of  the  Credit  Agreement,  the  undersigned  hereby certifies that (a) it is the sole record owner of the participation in respect of which it is  providing  this  certificate,  (b)  its  direct  or  indirect  partners/members  are  the  sole  beneficial  owners of such participation, (c) with respect such participation, neither the undersigned nor any  of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement  entered  into  in  the  ordinary  course  of  its  trade  or  business  within  the  meaning  of  Section  881(c)(3)(A)  of  the  Code,  (d)  none  of  its  direct  or  indirect  partners/members  is  a  ten  percent  (10%) shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and  (e) none of its direct or indirect partners/members is a controlled foreign corporation related to  the Borrower as described in Section 881(c)(3)(C) of the Code.                 The  undersigned  has  furnished  its  participating  Lender  with  IRS  Form  W-8IMY  accompanied by one of the following forms from each of its partners/members that is claiming  the  portfolio  interest  exemption:  (i)  an  IRS  Form  W-8BEN  or  (ii)  an  IRS  Form  W-8IMY  accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners  that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned  agrees  that  (A)  if  the  information  provided  on  this  certificate  changes,  the  undersigned  shall  promptly so inform such Lender and (B) the undersigned shall have at all times furnished such  Lender with a properly completed and currently effective certificate in either the calendar year in  which  each  payment  is  to  be  made  to  the  undersigned,  or  in  either  of  the  two  calendar  years  preceding such payments.                      Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.                [NAME OF PARTICIPANT]    By:                                             Name:        Title:    Date: ________ __, 20[  ]                                         E-18  





 






                                    EXHIBIT G-4                                    FORM OF                       U.S. TAX COMPLIANCE CERTIFICATE                                                (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)          Reference is hereby made to that certain Credit and Security Agreement dated November  4,  2016,  as  amended  and  restated  as  of  March  1,  2019  (the  “Credit  Agreement”),  among  Bandwidth Inc., a Delaware corporation (the “Borrower”), the Lenders, as defined therein, and  KeyBank National Association, as the administrative agent for the Lenders (the “Administrative  Agent”).                         Pursuant  to  the  provisions  of  Section  3.2  of  the  Credit  Agreement,  the  undersigned  hereby  certifies  that  (a)  it  is  the  sole  record  owner  of  the  Loan(s)  (as  well  as  any  Note(s)  evidencing  such  Loan(s))  in  respect  of  which  it  is  providing  this  certificate,  (b)  its  direct  or  indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s)  evidencing  such  Loan(s)),  (c)  with  respect  to  the  extension  of  credit  pursuant  to  the  Credit  Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect  partners/members  is  a  bank  extending  credit  pursuant  to  a  loan  agreement  entered  into  in  the  ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,  (d)  none  of  its  direct  or  indirect  partners/members  is  a  ten  percent  (10%)  shareholder  of  the  Borrower within the meaning of Section 871(h)(3)(B) of the Code and (e) none of its direct or  indirect  partners/members  is  a  controlled  foreign  corporation  related  to  the  Borrower  as  described in Section 881(c)(3)(C) of the Code.          The  undersigned  has  furnished  the  Administrative  Agent  and  the  Borrower  with  IRS  Form W-8IMY accompanied by one of the following forms from each of its partners/members  that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form  W-8IMY  accompanied  by  an  IRS  Form  W-8BEN  from  each  of  such  partner’s/member’s  beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate,  the  undersigned  agrees  that  (A)  if  the  information  provided  on  this  certificate  changes,  the  undersigned shall promptly so inform the Borrower and the Administrative Agent, and (B) the  undersigned shall have at all times furnished the Borrower and the Administrative Agent with a  properly completed and currently effective certificate in either the calendar year in which each  payment is to be made to the undersigned, or in either of the two calendar years preceding such  payments.                      Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.                [NAME OF LENDER]    By:                                             Name:        Title:    Date: ________ __, 20[  ]                                         E-19