exhibit102amendment






                                          EXHIBIT 10.2 – EXECUTION VERSION                AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT                                   AGREEMENT                 AMENDMENT  NO.  1  dated  as  of  May  7,  2020  (this  “Amendment”)  to  SECOND   AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 15, 2017 (the   “Credit Agreement”), among LABORATORY CORPORATION OF AMERICA HOLDINGS,   a Delaware corporation (the “Borrower”), the LENDERS party hereto and BANK OF   AMERICA, N.A., as Administrative Agent.                                        W I T N E S S E T H :                 WHEREAS, the Borrower has requested that the Credit Agreement be amended as set   forth herein; and                 WHEREAS,  the  Administrative  Agent  and  the  Required  Lenders  executing  this   Amendment as a Lender are willing to amend the Credit Agreement on the terms set forth herein;                 NOW,  THEREFORE,  in  consideration  of  the  premises  and  other  good  and  valuable   consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto   hereby agree as follows:                 Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each   term used herein that is defined in the Credit Agreement has the meaning assigned to such term   in the Credit Agreement.                 Section  2. Amendments.  Each  of  the  parties  hereto  agrees  that,  effective  on  the   Amendment Effective Date (as defined below), the Credit Agreement shall be amended to delete   the stricken text (indicated textually in the same manner as the following example: stricken text)   and to add the double-underlined text (indicated textually in the same manner as the following   example: double-underlined text) as set forth on the pages of the Credit Agreement attached as   Exhibit A hereto.                 Section 3. Representations and Warranties. The Borrower represents and warrants as to  itself and its Subsidiaries to the other parties hereto that:                (a)  the execution, delivery and performance of this Amendment are within the   Borrower’s corporate powers and have been duly authorized by all necessary corporate and, if  required, stockholder action;                (b)  this Amendment has been duly executed and delivered by the Borrower and   constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with   its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws   affecting creditors’ rights generally and subject to general principles of equity, regardless of   whether considered in a proceeding in equity or at law; and                                           1 





 






      (c)  the representations and warranties contained in the Credit Agreement and any other   Loan Document are true and correct in all material respects (other than any such representation   and warranty that is already qualified by materiality or “Material Adverse Effect” in the text   thereof, in which case such representation and warranty shall be true in all respects) on and as of   the date hereof, except to the extent such representations and warranties specifically relate to an   earlier date, in which case such representations and warranties are true and correct in all material   respects on and as of such earlier date.                 Section 4. Effectiveness. This Amendment shall become effective as of the first date on  which the following conditions precedent have been satisfied (or waived in accordance with  Section 10.01 of the Credit Agreement) (the “Amendment Effective Date”):                (a)  the Administrative Agent (or its counsel) shall have received from the Borrower,  the Required Lenders and the Administrative Agent either (i) a counterpart of this Amendment  signed on behalf of such party or (ii) written evidence reasonably satisfactory to the  Administrative Agent (which may include .pdf or facsimile transmission of a signed signature  page of this Amendment) that such party has signed a counterpart of this Amendment;                (b)  the Administrative Agent (or its counsel) shall have received a certificate, dated the  Amendment Effective Date and signed by the President and Chief Executive Officer, a Vice  President or a Financial Officer of the Borrower, confirming (i) the accuracy of the  representations and warranties set forth in Section 3 of this Amendment and (ii) the absence of  any Default or Event of Default;                (c)  all fees and out-of-pocket expenses of the Administrative Agent and its applicable   Affiliates required to be paid on or before the Amendment Effective Date pursuant to (i) Section   10.04 of the Credit Agreement and (ii) that certain Fee Letter, dated as of the date hereof,   between the Borrower and BofA Securities, Inc., shall have been paid; and                (d)  the Borrower shall have paid all reasonable and documented out-of-pocket fees,   charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least   three (3) days prior to the Amendment Effective Date, plus such additional amounts of such fees,   charges and disbursements as shall constitute its reasonable estimate of such fees, charges and   disbursements incurred or to be incurred by it through the Amendment Effective Date (provided   that such estimate shall not thereafter preclude a final settling of accounts between the Borrower   and the Administrative Agent).                 Section  5. Governing Law. This  Amendment  shall  be  governed  by,  and  construed  in   accordance  with,  the  laws  of  the  State  of  New  York  without  regard  to  the  conflicts  of  law   principles  thereto  and  to  the  extent  that  such  principles  would  direct  a  matter  to  another   jurisdiction.                                       [Signature Pages Follow]                                           2 





 






              IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be  duly executed as of the date first above written.                                              LABORATORY CORPORATION OF                                      AMERICA HOLDINGS,                                      a Delaware corporation                                                                           By:   /s/ Glenn A. Eisenberg                                       Name: Glenn A. Eisenberg                                       Title:  Executive Vice President, Chief                                       Financial Officer and Treasurer        [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                                Agreement] 





 






                                                                BANK OF AMERICA, N.A.,                                  as Administrative Agent                                   By:   /s/ Aamir Saleem                                      Name: Aamir Saleem                                      Title:  Vice President    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        BANK OF AMERICA, N.A.,                                  as a Lender                                                                         By:   /s/ Joseph L. Corah                                      Name: Joseph L. Corah                                      Title:  Director    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        WELLS FARGO BANK, N.A.,                                  as a Lender                                                                         By:   /s/ Darin Mullis                                      Name: Darin Mullis                                      Title:  Managing Director    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        CREDIT SUISSE AG, CAYMAN                                  ISLANDS BRANCH, as a Lender                                                                         By:   /s/ Lingzi Huang                                      Name: Lingzi Huang                                      Title:  Authorized Signatory                                                                         By:    /s/ Brady Bingham                                      Name: Brady Bingham                                      Title:  Authorized Signatory    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                                                TD BANK, N.A.,                                  as a Lender                                   By:   /s/ Alan Garson                                      Name: Alan Garson                                      Title:  Senior Vice President    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        MUFG BANK, LTD. (f.k.a. THE BANK                                  OF TOKYO-MITSUBISHI UFJ, LTD.),                                  as a Lender                                   By:   /s/ Jack Lonker                                      Name: Jack Lonker                                      Title:  Director    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        U.S. BANK NATIONAL                                  ASSOCIATION,                                  as a Lender                                   By:   /s/ Maria Massimino                                      Name: Maria Massimino                                      Title:  Vice President    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        PNC BANK, N.A.,                                  as a Lender                                                                         By:   /s/ Matthew O. Burge                                      Name: Matthew O. Burge                                      Title:  Senior Vice President    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        BARCLAYS BANK PLC,                                  as a Lender                                                                         By:   /s/ Edward Pan                                      Name: Edward Pan                                      Title:  Associate    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        KeyBank National Association,                                  as a Lender                                                                         By:   /s/ Thomas A. Crandell                                      Name: Thomas A. Crandell                                      Title:  Senior Vice President    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        JPMORGAN CHASE BANK, N.A.,                                  as a Lender                                                                         By:   /s/ Antje Focke                                      Name: Antje Focke                                      Title:  Executive Director    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        FIFTH THIRD BANK, National                                  Association,                                  as a Lender                                   By:   /s/ Tamara Dowd                                      Name: Tamara Dowd                                      Title:  Director    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        THE BANK OF NEW YORK MELLON,                                  as a Lender                                                                         By:   /s/ Clifford A. Mull                                       Name: Clifford A. Mull                                      Title:  Director    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        Truist Bank, formerly known as Branch                                  Banking and Trust Company,                                  as a Lender                                   By:   /s/ Max N Greer III                                      Name: Max N Greer III                                      Title:  Senior Vice President    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        CREDIT AGRICOLE CORPORATE                                  AND INVESTMENT BANK,                                  as a Lender                                   By:   /s/ Gordon Yip                                      Name: Gordon Yip                                      Title:  Director                                                                         By:    /s/ Jill Wong                                      Name: Jill Wong                                      Title:  Director    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        Goldman Sachs Bank USA,                                  as a Lender                                                                         By:   /s/ Jamie Minieri                                      Name: Jamie Minieri                                      Title:  Authorized Signatory    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        CITIBANK, N.A.,                                  as a Lender                                                                         By:   /s/ Michael S. Chen                                      Name: Michael S. Chen                                      Title:  Director    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






                                        Citizens Bank, N.A.,                                  as a Lender                                                                         By:   /s/ Mark Guyeski                                      Name: Mark Guyeski                                      Title:  Vice President    [Signature Page to Amendment No. 1 to Second Amended and Restated Credit                            Agreement] 





 






        Exhibit A   [Attached.] 





 






                                                                  EXHIBIT A Conformed through Amendment No. 1 to Second Amended and Restated Credit Agreement, dated as of                                                                   May 7, 2020              SECOND AMENDED AND RESTATED CREDIT AGREEMENT                           Dated as of September 15, 2017                       (Originally dated as of December 21, 2011,                    amended and restated as of December 19, 2014,                      and further amended as of July 13, 2016),                 further amended and restated as of September 15, 2017                       and further amended as of May 7, 2020)                                    among               LABORATORY CORPORATION OF AMERICA HOLDINGS,                               as the Borrower,                            BANK OF AMERICA, N.A.,               as Administrative Agent, Swing Line Lender and L/C Issuer,                  WELLS FARGO BANK, NATIONAL ASSOCIATION,                        as Syndication Agent and L/C Issuer,                 CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,                               TD BANK, N.A.,                  THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,                      U.S. BANK NATIONAL ASSOCIATION,                     PNC BANK, NATIONAL ASSOCIATION,                            BARCLAYS BANK PLC,                      KEYBANK NATIONAL ASSOCIATION                                    and                        JPMORGAN CHASE BANK, N.A.,                            as Documentation Agents                                     and                      THE OTHER LENDERS PARTY HERETO            MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED                            BofA SECURITIES, INC.                                    and                        WELLS FARGO SECURITIES, LLC                   as Joint Lead Arrangers and Joint Book Managers





 






                              TABLE OF CONTENTS  ARTICLE I  DEFINITIONS AND ACCOUNTING TERMS                                   1        1.01 Defined Terms.                                                    1        1.02 Other Interpretive Provisions.                                 2123        1.03 Accounting Terms.                                              2223        1.04 Rounding.                                                      2224        1.05 Times of Day.                                                  2224        1.06 Letter of Credit Amounts.                                      2224        1.07  Divisions.                                                      25  ARTICLE II  THE COMMITMENTS AND CREDIT EXTENSIONS                         2325        2.01 Commitments.                                                   2325        2.02 Borrowings, Conversions and Continuations of Loans.            2325        2.03 Letters of Credit.                                             2528        2.04 Swing Line Loans.                                              3337        2.05 Prepayments.                                                   3539        2.06 Termination or Reduction of Aggregate Revolving Commitments.   3640        2.07 Repayment of Loans.                                            3741        2.08 Interest.                                                      3741        2.09 Fees.                                                          3842        2.10 Computation of Interest and Fees.                              3842        2.11 Evidence of Debt.                                              3942        2.12 Payments Generally; Administrative Agent’s Clawback.           3943        2.13 Sharing of Payments by Lenders.                                4145        2.14 Cash Collateral.                                               4145        2.15 Defaulting Lenders.                                            4246        2.16 Certain Permitted Amendments.                                  4448  ARTICLE III  TAXES, YIELD PROTECTION AND ILLEGALITY                       4549        3.01 Taxes.                                                         4549        3.02 Illegality.                                                    4953        3.03 Inability to Determine Rates.                                  4954        3.04 Increased Costs.                                               5054        3.05 Compensation for Losses.                                       5155        3.06 Mitigation Obligations; Replacement of Lenders.                5256        3.07 Survival.                                                      5256  ARTICLE IV  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS                     5256        4.01 Conditions to Effectiveness.                                   5256        4.02 Conditions to all Credit Extensions.                           5458  ARTICLE V  REPRESENTATIONS AND WARRANTIES                                 5559        5.01 Organization; Powers.                                          5559        5.02 Authorization.                                                 5559        5.03 Enforceability.                                                5660        5.04 Governmental Approvals.                                        5660        5.05 Financial Statements.                                          5660        5.06 No Material Adverse Change.                                    5660        5.07 [Reserved].                                                    5660        5.08 Litigation; Compliance with Laws.                              5661        5.09 Federal Reserve Regulations.                                   5761                                        i





 






     5.10  Investment Company Act.                                        5761       5.11 Use of Proceeds.                                               5761       5.12 Tax Returns.                                                   5761       5.13 No Material Misstatements.                                     5762       5.14 Employee Benefit Plans.                                        5862       5.15 Environmental Matters.                                         5862       5.16 Senior Indebtedness.                                           5862       5.17 No Default.                                                    5862       5.18 OFAC.                                                          5862       5.19 Anti-Corruption Laws and Sanctions.                            5863       5.20 EEA Financial Institutions.                                    5863 ARTICLE VI  AFFIRMATIVE COVENANTS                                         5963       6.01 Existence; Businesses and Properties; Compliance with Laws.    5963       6.02 Insurance.                                                     5963       6.03 Obligations and Taxes.                                         5963       6.04 Financial Statements, Reports, etc.                            5964       6.05 Litigation and Other Notices.                                  6165       6.06 Maintaining Records; Access to Properties and Inspections      6166       6.07 Use of Proceeds                                                6266       6.08 Anti-Corruption Laws and Sanctions                             6266 ARTICLE VII  NEGATIVE COVENANTS                                           6266       7.01 Subsidiary Indebtedness                                        6266       7.02 Liens                                                          6367       7.03 Mergers, Consolidations and Sales of Assets                    6469       7.04 Business of Borrower and Subsidiaries                          6569       7.05 Maximum Leverage Ratio                                         6569       7.06 Organization Documents                                         6570       7.07 Sanctions                                                      6570       7.08 Anti-Corruption Laws.                                          6570 ARTICLE VIII  EVENTS OF DEFAULT AND REMEDIES                              6670       8.01 Events of Default.                                             6670       8.02 Remedies Upon Event of Default.                                6772       8.03 Application of Funds.                                          6872 ARTICLE IX  ADMINISTRATIVE AGENT                                          6973       9.01 Appointment and Authority.                                     6973       9.02 Rights as a Lender.                                            6974       9.03 Exculpatory Provisions.                                        6974       9.04 Reliance by Administrative Agent.                              7075       9.05 Delegation of Duties.                                          7075       9.06 Resignation of Administrative Agent.                           7075       9.07 Non-Reliance on Administrative Agent and Other Lenders.        7276       9.08 No Other Duties; Etc.                                          7277       9.09 Administrative Agent May File Proofs of Claim.                 7277 ARTICLE X  MISCELLANEOUS                                                  7377       10.01 Amendments, Etc.                                              7377       10.02 Notices and Other Communications; Facsimile Copies.           7579       10.03 No Waiver; Cumulative Remedies; Enforcement.                  7781       10.04 Expenses; Indemnity; and Damage Waiver.                       7782       10.05 Payments Set Aside.                                           7984       10.06 Successors  and Assigns.                                      7984                                       ii





 






10.07 Treatment of Certain Information; Confidentiality.            8489 10.08 Set-off.                                                      8590 10.09 Interest Rate Limitation.                                     8590 10.10 Counterparts; Integration; Effectiveness.                     8591 10.11 Survival of Representations and Warranties.                   8691 10.12 Severability.                                                 8691 10.13 Replacement of Lenders.                                       8691 10.14 Governing Law; Jurisdiction; Etc.                             8792 10.15 Waiver of Right to Trial by Jury.                             8893 10.16 Electronic Execution of Assignments and Certain Other Documents. 8893 10.17 USA PATRIOT Act.                                              8994 10.18 No Advisory or Fiduciary Relationship.                        8994 10.19 Lender ERISA Representation.                                  8995 10.20 Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions. 8996 10.21 Second Amendment and Restatement of Existing Credit Agreement. 9096 10.22 Acknowledgement Regarding Any Supported QFCs.                   97                                   iii





 






SCHEDULES        1.01       Existing Letters of Credit       2.01       Commitments and Applicable Percentages       10.02      Certain Addresses for Notices  EXHIBITS        A          Form of Loan Notice       B          Form of Swing Line Loan Notice       C          Form of Revolving Note       D          Form of Swing Line Note       E          Form of Compliance Certificate       F          Form of Assignment and Assumption       G          Form of Lender Joinder Agreement       H          Form of Letter of Credit Report                                         iv





 






              SECOND AMENDED AND RESTATED CREDIT AGREEMENT         This SECOND AMENDED  AND  RESTATED  CREDIT AGREEMENT   is  entered into as of   September 15, 2017 (originally dated as of December 21, 2011, amended and restated as of December 19,   2014  and further amended as of July 13,  2016) among LABORATORY CORPORATION OF   AMERICA  HOLDINGS, a  Delaware corporation (the “Borrower”), the Lenders (defined herein) and   BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.         The Borrower has requested that the Lenders provide credit facilities for the purposes set forth   herein, and the Lenders are willing to do so on the terms and conditions set forth herein.         In consideration of  the mutual covenants and agreements  herein contained, the parties hereto  agree to amend and restate the Existing Credit Agreement to read in its entirety as set forth below:                                     ARTICLE I                        DEFINITIONS AND ACCOUNTING TERMS   1.01 Defined Terms.         As used in this Agreement, the following terms shall have the meanings set forth below:         “2020 Amendment” means that certain Amendment No. 1 to Second Amended and Restated Credit   Agreement, dated as of May 7, 2020 (the “2020 Amendment Effective Date”), among the Borrower, the   Lenders party thereto and the Administrative Agent.         “2020 Amendment Effective Date” has the meaning specified in the definition of “2020   Amendment”.         “Accepting Lender” has the meaning specified in Section 2.16(a).         “Acquisition” means the acquisition by the Borrower or any Wholly Owned Subsidiary of (i) all or   substantially all of the assets of a Person or line of business of such Person where the aggregate   consideration (in whatever form) payable by the Borrower or any Subsidiary is greater than or equal to 10%  of the consolidated assets of the Borrower and its Subsidiaries prior to giving effect to such Acquisition, or   (ii) all or substantially all of the Equity Interests of a Person who, after giving effect to such Acquisition,   constitutes a Material Subsidiary.         “Administrative Agent” means Bank of America in its capacity as administrative agent under any  of the Loan Documents, or any successor administrative agent.        “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 10.02 or such other address or account as the Administrative Agent may  from time to time notify the Borrower and the Lenders.        “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by  the Administrative Agent.        “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.





 






       “Affiliate” means, with respect to any Person, another Person that directly, or indirectly through  one or more intermediaries, Controls or is Controlled by or is under common Control with the Person  specified.         “Agent Parties” has the meaning specified in Section 10.02(c).         “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.  The  aggregate  principal  amount  of  the  Aggregate  Revolving  Commitments  in  effect  on  the  Second  Amendment and Restatement Effective Date is ONE BILLION DOLLARS ($1,000,000,000).         “Agreement”  means  this  Second  Amended  and  Restated  Credit  Agreement,  as  amended from time to time.        “Applicable Percentage” means with respect to any Lender at any time, the percentage of the  Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time,  subject to adjustment as provided in Section 2.15; provided that if the commitment of each Lender to  make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been  terminated pursuant to Section 8.02 or if the Aggregate Revolving Commitments have expired, then the  Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such  Lender  most  recently  in  effect,  giving  effect  to  any  subsequent  assignments.   The  initial  Applicable  Percentage  of  each  Lender  is  set  forth  opposite  the name  of  such  Lender  on Schedule  2.01  or  in  the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.        “Applicable Rate” means with respect to Revolving Loans, Swing Line Loans, Letters of Credit  and  the  Facility  Fee,  the  following  percentages  per  annum,  based  upon  the  Debt  Rating  as  set  forth  below:      Pricing         Debt Rating      Applicable Rate Applicable Rate for     Level                                for       Eurodollar Rate Applicable Rate                S&P        Moody’s     Facility Fee Loans and Letter of for                                                      Credit Fee  Base Rate Loans       I            > A-       A3         0.100%         0.775%         0%     II          = BBB+      Baa1       0.125%         0.875%         0%     III         = BBB       Baa2       0.150%         0.975%         0%     IV          = BBB-      Baa3       0.175%         1.075%        0.075%     V           < BB+       Ba1        0.250%         1.250%        0.250%        “Debt Rating” means, as of any date of determination, the rating as determined by either S&P or        Moody’s (collectively, the “Debt Ratings”) of the Borrower’s Index Debt; provided that (a) if       each  of  the  respective  Debt  Ratings  issued  by  the  foregoing  rating  agencies  falls  within  a       different  pricing  level  listed  above  (the  “Pricing  Level”),  then  the  Pricing  Level  shall  be  set        based on the higher of such Pricing Levels; provided, however, that if there is a split in Debt        Ratings of more than one level, the Pricing Level that is one level lower than the Pricing Level of        the higher Debt Rating shall apply; (b) if the Borrower has only one Debt Rating, the Pricing        Level shall be set based upon the Pricing Level one level lower than such Debt Rating; and (c) if        the Borrower does not have any Debt Rating, Pricing Level V shall apply.                                         2





 






       Initially, the Applicable Rate shall be determined based upon the Debt Ratings specified in the   certificate delivered pursuant to Section 4.01(f).  Thereafter, each change in the Applicable Rate resulting   from a publicly announced change in the Debt Rating, shall be effective during the period commencing  on the date  of  the  public  announcement thereof  and ending  on the date  immediately  preceding  the  effective date of the next such change.        Notwithstanding the foregoing, if at any time prior to the end of the Compliance Leverage Ratio  Period a Compliance Certificate setting forth a Leverage Ratio in excess of 4.50:1.00 is delivered  pursuant to Section 6.04(c), Pricing Level V shall apply commencing on the first Business Day  immediately following the date that such Compliance Certificate is delivered and ending on the date a  Compliance Certificate setting forth a Leverage Ratio of less than or equal to 4.50:1.00 is delivered  pursuant to Section 6.04(c), at which time the Applicable Rate shall be determined based upon the Debt  Ratings in accordance with the foregoing provisions of this definition.        “Approved  Fund”  means any Fund that is  administered or managed by  (a) a  Lender, (b)  an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.          “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or   two or more Approved Funds managed by the same investment advisor.         “Assignment and Assumption” means an assignment and assumption entered into by a Lender   and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)),   and accepted by the Administrative Agent, in  substantially the form of Exhibit F or any other form   approved by the Administrative Agent.         “Attributable Indebtedness” means, on any date, (a) in  respect of any Synthetic Lease of any   Person, the capitalized amount of the remaining lease payments under the relevant lease that would  appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease  were accounted for as a Capital Lease Obligation and (b) in respect of any Securitization Transaction of  any Person, the outstanding principal amount of  such financing, after taking into account reserve  accounts and making appropriate adjustments, as reasonably determined by the Borrower in good faith.        “Audited Financial Statements” means the audited consolidated balance sheet of the Borrower  and its Subsidiaries for the fiscal year ended December 31, 2016, and the related consolidated statements  of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its  Subsidiaries, including the notes thereto, audited by independent public accountants of recognized  national standing and prepared in conformity with GAAP.        “Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).        “Availability Period” means, with respect to the Revolving Commitments, the period from and  including the Second Amendment and Restatement Effective Date to the earliest of (a) for each Lender,  the Maturity Date with respect to such Lender’s Commitment, (b) the date of termination of  the   Aggregate Revolving Commitments pursuant to  Section 2.06, and (c) the date of termination of the  commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit  Extensions pursuant to Section 8.02.                                         3





 






       “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 EEAAffected Financial Institution.         “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing  law,  rule,  regulation  or  requirement  for  such  EEA  Member  Country  from  time  to  time  which is described in the EU Bail-In Legislation Schedule., and (b) with respect to the United Kingdom,  Part  I  of  the  United  Kingdom  Banking  Act  2009  (as  amended  from  time  to  time)  and  any other law,  regulation  or  rule  applicable  in  the  United  Kingdom  relating  to  the  resolution  of  unsound  or  failing  banks, investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).         “Bank of America” means Bank of America, N.A. and its successors.        “Base  Rate”  means  for  any  day  a  fluctuating  rate  per  annum  equal  to  the  highest  of  (a)  the  Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from  time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate plus 1.00%; provided  that if the Base Rate would otherwise be less than 0.00% the Base Rate shall be deemed to be 0.00%.  The  “prime  rate”  is  a  rate  set  by  Bank  of  America  based  upon  various  factors  including  Bank  of  America’s  costs  and  desired  return,  general  economic  conditions  and  other  factors,  and  is  used  as  a  reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any  change  in  the  “prime  rate”  announced  by  Bank  of  America  shall  take  effect  at  the  opening  of  business on the day specified in the public announcement of such change.         “Base Rate Loan” means a Loan that bears interest based on the Base Rate.         “Beneficial Ownership Regulation” means 31 C.F. R. §1020.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets  include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section  4975 of the Code) the assets of any such “employee benefit plan” or “plan”.         “BofA Securities” means BofA Securities, Inc., in its capacity as joint lead arranger and joint  book manager, and its successors and assigns.         “Borrower” has the meaning specified in the introductory paragraph hereto.         “Borrower Materials” has the meaning specified in Section 6.04.         “Borrowing” means each of the following: (a) a  borrowing of Swing Line Loans  pursuant to  Section 2.04 and (b) a borrowing consisting of simultaneous Loans of the same Type and, in the case of  Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section  2.01.        “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks are authorized to close under the Laws of, or are in fact closed in, the state where the  Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any  such day that is also a London Banking Day.                                        4





 






       “Capital Lease Obligations” of any Person shall mean the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.        “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for  the  benefit  of  the  Administrative  Agent,  L/C  Issuer  or  Swing  Line  Lender  (as  applicable)  and  the  Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans or obligations of  Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit  account balances or, if the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree  in its sole discretion, other credit support, in each case pursuant to documentation in form and substance  satisfactory  to  (a)  the  Administrative  Agent  and  (b)  the  L/C  Issuer  or  the  Swing  Line  Lender  (as  applicable).  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the  proceeds of such cash collateral and other credit support.         “Change  in  Law”  means  the  occurrence,  after  the  date  of  this  Agreement,  of  any  of  the  following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any  law,  rule,  regulation  or  treaty  or  in  the  administration,  interpretation,  implementation  or  application  thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or  directive  (whether  or  not  having  the  force  of  law)  by  any  Governmental  Authority;  provided,  that,  notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer  Protection  Act  and  all  requests,  rules,  guidelines  or  directives  thereunder  or  issued  in  connection  therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International  settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the  United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be  a “Change in Law”, regardless of the date enacted, adopted or issued.         “Change  in  Control”  means  the  occurrence  of  any  of  the  following  events:  (a) any  person  or group (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date hereof) shall own directly or indirectly, beneficially or of record, Equity Interests representing more than 40% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the  Borrower  or (b)  a majority  of  the  seats  (other than  vacant  seats) on  the  board of directors of the Borrower  shall  at  any  time  cease  to  be  occupied  by  persons  (i)  who  were  members  of  the  board  of directors on the Second Amendment and Restatement Effective Date, (ii) who were nominated or elected to the board of directors, or whose nomination or election was approved, by individuals referred to in clause  (i)  constituting  at  the  time  of  such  election,  nomination  or  approval  at  least  a  majority  of  the members of the board of directors or (iii) who were nominated or elected to the board of directors, or whose  nomination  or  election  was  approved,  by  individuals  referred  to  in  clauses  (i)  and  (ii)  above constituting  at  the  time  of  such  election,  nomination  or  approval  at  least  a  majority  of  the  board  of directors.        “Commitment” means, as to each Lender, the Revolving Commitment of such Lender.        “Compliance Certificate” means a certificate substantially in the form of Exhibit E.         “Compliance Leverage Ratio Period” has the meaning specified in Section 7.05(b).                                         5





 






       “Confidential Information Memorandum” means the Confidential Information Memorandum of  the Borrower dated August 2017.         “Consenting Lender” has the meaning specified in Section 10.21.         “Consolidated  EBITDA”  means,  for  any  period  for  the  Borrower  and  its  Subsidiaries  on  a  consolidated  basis,  Consolidated  Net  Income  for  such  period  plus  (a)  without  duplication  and  to  the  extent  deducted  in  determining  such  Consolidated  Net  Income,  the  sum  of  (i)  consolidated  interest  expense net of interest income for such period, (ii) consolidated income tax expense for such period, (iii)  all  amounts  attributable  to  depreciation  and  amortization  for  such  period  and  (iv)  any  extraordinary  charges  and  all  non-cash  write-offs  and  write-downs  of  amortizable  and  depreciable  items  for  such  period, and minus (b) without duplication, to the extent included in determining such Consolidated Net  Income, any extraordinary gains and all non-cash items of income for such period, all as determined in  accordance with GAAP.         “Consolidated Net Income” means, for any period, the net income or loss of the Borrower and  the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.         “Consolidated  Net  Worth”  means, as  of  any date of determination, consolidated shareholders'  equity of the Borrower and its Subsidiaries as of that date determined in accordance with GAAP.         “Control”  means  the  possession,  directly  or  indirectly,  of  the  power  to  direct  or  cause  the direction  of  the  management  or  policies  of  a  Person,  whether  through  the  ability  to  exercise  voting power,  by  contract  or  otherwise.  “Controlling”  and “Controlled”  have  meanings  correlative  thereto.  Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another  Person if such other Person possesses, directly or indirectly, power to vote 5% or more of the securities  having ordinary voting power for the election of directors, managing general partners or the equivalent.         “Covered Party” has the meaning specified in Section 10.22(a).         “Credit  Extension”  means each of  the  following: (a) a  Borrowing  and (b)  an  L/C Credit   Extension.         “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,   conservatorship, bankruptcy, assignment for the benefit of  creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other  applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.        “Debt Rating” has the meaning set forth in the definition of “Applicable Rate.”         “Default”  means any event or  condition that constitutes an Event of  Default or that, with the   giving of any notice, the passage of time, or both, would be an Event of Default.         “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees,   an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate   Loans  plus (iii) 2% per  annum; provided, however, that with respect to a  Eurodollar Rate Loan,  the   Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise   applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable                                         6





 






 Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus  2% per annum.        “Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to perform  any of its funding obligations hereunder, including in respect of its Loans or participations in respect of  Letters of Credit or Swing Line Loans, within three (3) Business Days of the date required to be funded  by it hereunder, unless such Lender notifies the Administrative Agent and the Borrower in writing that  such failure is the result of such Lender’s good faith determination that one or more conditions precedent  to funding (each of which conditions precedent, together with any applicable default, shall be specifically  identified in such writing) has not been satisfied, (b) has notified the Borrower or the Administrative  Agent that it does not intend to comply with its funding obligations or has made a public statement to that  effect with respect to its funding obligations hereunder (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 good faith determination that a  condition precedent to funding (which condition precedent,  together with any applicable default, shall be specifically identified in writing or public statement) cannot  be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative  Agent, to  confirm in a manner satisfactory to the Administrative Agent or  the Borrower that it will  comply with its funding obligations; provided that any such Lender shall cease to be a Defaulting Lender  under this clause (c) upon  receipt of  such confirmation by the Administrative Agent in a  manner  reasonably satisfactory to the Administrative Agent or (d) has, or has a direct or indirect parent company  that has, (i) become the subject of  a  proceeding under any Debtor Relief Law, (ii) had  a  receiver,  conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with  reorganization or liquidation of its business or  a custodian appointed for it, (iii) taken any action in  furtherance of, or indicated its consent to, approval of or  acquiescence in  any such proceeding or  appointment or (iv) become the subject of a Bail-In Action; provided, that, a  Lender shall not be a  Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interests in that Lender  or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership  interest does not result in or provide such Lender with immunity from the jurisdiction of courts within  the United States or from the enforcement of judgments or writs of attachment on its assets or permit  such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or  agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a  Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest  error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the  date established therefor by the Administrative Agent in a written notice of such determination, which  shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swing Line Lender  and each other Lender promptly following such determination.        “Designated Jurisdiction” means any country or territory to the extent that such country or  territory itself is the subject of any Sanctions (as of the Second Amendment and Restatement Effective  Date, Crimea, Cuba, Iran, North Korea, Sudan and Syria).        “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including  any Sale and Leaseback Transaction) of any property by the Borrower or any Subsidiary (including the  Equity Interests of any Material Subsidiary), including any sale, assignment, transfer or other disposal,  with or  without recourse, of any notes or accounts receivable or any rights and claims associated  therewith where either (i) the aggregate consideration (in whatever form) received by the Borrower or  any Subsidiary is  greater than or equal to  10% of  the consolidated assets of  the Borrower and its  Subsidiaries prior to giving effect to such disposition or (ii) such  disposition constitutes the sale,  assignment, transfer or disposal of all or substantially all of the Equity Interests of a Subsidiary who,                                        7





 






 prior to giving effect to such disposition, constitutes a Material Subsidiary, but excluding (a) the sale,  lease, license, transfer or other disposition of inventory in the ordinary course of business; (b)  the sale,  lease, license, transfer or other disposition in the ordinary course of business of surplus, obsolete or worn  out property no longer used or useful in the conduct of business of the Borrower and its Subsidiaries; (c)  any sale, lease, license, transfer or other disposition of property to the Borrower or any Subsidiary; and  (d) any Involuntary Disposition.         “Dollar” and “$” mean lawful money of the United States.         “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary  of an institution described in clauses (a) or (b) of this definition and is subject to consolidated  supervision with its parent.         “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein and Norway.         “EEA Resolution Authority” means any public administrative authority or any Person entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee)  having  responsibility for the resolution of any EEA Financial Institution.         “Electronic Signature” has the meaning specified in Section 10.16.         “Eligible  Assignee”  means any  Person that meets the  requirements  to be an assignee under   Section 10.06(b) (subject to such consents, if any, as may be required under Section 10.06(b)(ii)).         “Environmental Laws” means all Laws,  rules, regulations, codes, ordinances, orders, decrees,   judgments or injunctions issued, promulgated or entered into by any Governmental Authority, relating to   the environment, the preservation or reclamation of natural resources, the management or release of  Hazardous Materials or to the effect of the environment on human health and safety.        “Environmental Liability” means liabilities, obligations, claims, actions, suits, judgments or  orders under or relating to any Environmental Law  for any damages, injunctive relief, losses, fines,  penalties, fees, expenses (including fees and expenses of attorneys and consultants) or costs, whether  contingent or otherwise, including those arising from or relating to (a) any action to address the on- or  off-site presence, release of, or exposure to,  Hazardous Materials, (b) permitting and licensing,  governmental administrative oversight and financial assurance requirements, (c) any personal injury  (including death), any property damage (real or personal) or natural resource damage and  (d) the   violation of any Environmental Law.         “Equity Interests”  means, with respect to any Person, all of the shares of capital stock of (or  other ownership or profit interests in) such Person, all of the warrants, options or other rights for the  purchase or acquisition from such Person of  shares of capital stock of (or other ownership or profit   interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock   of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or   acquisition from such Person of such shares (or such other interests), and all of the other ownership or   profit interests in such Person (including partnership, member or trust interests therein), whether voting                                        8





 






 or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding  on any date of determination; provided that the Subordinated Notes are deemed not to constitute Equity Interests.        “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.        “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with  the Borrower, is treated as a single employer under Section 414(b) or (c) of the Internal Revenue Code,  or solely for purposes of Section 302 of ERISA and Section 412 of the Internal Revenue Code, is treated  as a single employer under Section 414 of the Internal Revenue Code.         “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the  regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice  period  is  waived),  (b)  prior  to  the  effectiveness  of  the  applicable  provisions  of  the  Pension  Act,  the  existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of  the Internal Revenue Code or Section 302 of ERISA) or, on and after the effectiveness of the applicable  provisions of the Pension Act, any failure by any Plan to satisfy the minimum funding standard (within  the meaning of Section 412 of the Internal Revenue Code or Section 302 of ERISA) applicable to such  Plan,  in  each  case  whether  or  not  waived,  (c)  the  filing  pursuant  to,  prior  to  the  effectiveness  of the  applicable provisions of the Pension Act, Section 412(d) of the Internal Revenue Code or Section 303(d)  of  ERISA  or,  on  and  after  the  effectiveness  of  the  applicable  provisions  of  the  Pension  Act,  Section  412(c) of the Internal Revenue Code or Section 302(c) of ERISA, of an application for a waiver of the  minimum funding standard with respect to any Plan, (d) on and after the effectiveness of the applicable  provisions of the Pension Act, a determination that any Plan is, or is expected to be, in “at- risk” status  (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Internal Revenue Code), (e) the  incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with  respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any of  its ERISA Affiliates from any Plan or Multiemployer Plan, (f) the receipt by the Borrower or any of its  ERISA  Affiliates  from  the  PBGC  or  a  plan  administrator  of  any  notice  relating  to  the  intention  to  terminate any Plan or Plans or to appoint a trustee to administer any Plan, (g) prior to the effectiveness of  the applicable provisions of the Pension Act, the adoption of any amendment to a Plan that would require  the provision of security pursuant to Section 401(a)(29) of the Internal Revenue Code or Section 307 of  ERISA, (h) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt by any  Multiemployer  Plan  from  the  Borrower  or  any  of  its  ERISA  Affiliates  of  any  notice,  concerning  the  imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,  insolvent or in reorganization, within the meaning of Title IV of ERISA or, on and after the effectiveness  of the applicable provisions of the Pension Act, in endangered or critical status, within the meaning of  Section  305  of  ERISA;  or  (i)  the  occurrence  of  a  “prohibited  transaction”  with  respect  to  which  the  Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the  Internal Revenue Code) or with respect to which the Borrower or any such Subsidiary could otherwise be  liable.         “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.         “Eurodollar Base Rate” means:                                         9





 






             (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum        equal  to  (i)  the  ICE  Benchmark  Association  LIBOR  Rate  (“ICE  LIBOR”),  as  published  by        Bloomberg (or such other commercially available source providing quotations of ICE LIBOR as        may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,        London time, two Business Days prior to the commencement of such Interest Period, for Dollar        deposits (for  delivery  on  the first  day of such  Interest Period)  with a term equivalent to such        Interest Period or (ii) if such rate is not available at such time for any reason, the rate per annum        determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery        on  the  first  day  of  such  Interest  Period  in  same  day  funds  in  the  approximate  amount  of  the        Eurodollar Rate Loan being made, continued or converted and with a term equivalent to such        Interest Period would be offered by Bank of America’s London Branch to major banks in the        London interbank eurodollar market at their request at approximately 11:00 a.m. (London time)        two Business Days prior to the commencement of such Interest Period; and               (b) for any interest rate calculation with respect to a Base Rate Loan on any date, the rate        per  annum  equal  to  (i)  ICE  LIBOR,  as  published  by Bloomberg  (or such  other  commercially        available source providing quotations of ICE LIBOR as may be designated by the Administrative        Agent from time to time), at approximately 11:00 a.m. London time determined two Business        Days prior to such date for Dollar deposits being delivered in the London interbank market for a        term of one month commencing that day or (ii) if such published rate is not available at such time        for  any  reason,  the  rate  per  annum  determined  by  the  Administrative  Agent  to  be  the  rate  at        which  deposits  in  Dollars  for  delivery  on  the  date  of  determination  in  same day  funds  in  the        approximate amount of the Base Rate Loan being made or maintained with a term equal to one        month would be offered by Bank of America’s London Branch to major banks in the London        interbank eurodollar market at their request at the date and time of determination.         “Eurodollar Rate” means (a) for any Interest Period with respect to any Eurodollar Rate Loan, a  rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing  (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest Period by (ii) one minus the  Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest Period and (b) for any  day with respect to any Base Rate Loan bearing interest at a rate based on the Eurodollar Rate, a rate per  annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the  Eurodollar Base Rate for such Base Rate Loan for such day by (ii) one minus the Eurodollar Reserve  Percentage for such Base Rate Loan for such day; provided that if the Eurodollar Rate determined in  accordance with any of the foregoing shall be less than zero, the Eurodollar Rate shall be deemed to be  zero for all purposes of this Agreement.         “Eurodollar  Rate  Loan”  means  a Loan  that  bears  interest  at  a rate based  on  clause  (a)  of  the definition of “Eurodollar Rate”.        “Eurodollar  Reserve  Percentage”  means,  for  any  day  during  any  Interest  Period,  the  reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum  reserve  requirement  (including  any  emergency,  supplemental  or  other  marginal  reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.        “Event of Default” has the meaning specified in Section 8.01.                                        10





 






      “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or  any other recipient of any payment to be made by or on account of any obligation of the Borrower  hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), franchise  taxes imposed on it (in lieu of net income taxes) and capital Taxes other than capital Taxes resulting from a  Change in Law, in each case, (i) 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) any branch  profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which  the Borrower is located that are Other Connection Taxes, (c) any backup withholding Tax that is required  by the Internal Revenue Code to be withheld from amounts payable to a Lender that has failed to comply  with clause (A) of Section 3.01(e)(ii), (d) in the case of a Foreign Lender (other than an assignee pursuant to  a request by the Borrower under Section 10.13), any United States withholding tax that (i) is required to be  imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign  Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign  Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e)(ii),  except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation  of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to  such withholding Tax pursuant to Section 3.01(a)(ii) or (c) and (e) any U.S. federal withholding Taxes  imposed under FATCA.        “Existing Credit Agreement” means that certain Amended and Restated Credit Agreement dated as  of December 19, 2014 (originally dated as of December 21, 2011), among the Borrower, the lenders party  thereto and Bank of America, N.A., as agent, as amended by that certain Amendment No. 1 to Amended  and Restated Credit Agreement dated of July 13, 2016, and as otherwise amended or modified from time to  time prior to the Second Amendment and Restatement Effective Date.        “Existing Letters of Credit” means the letters of credit described by date of issuance, letter of  credit number, undrawn amount, name of beneficiary and date of expiry on Schedule 1.01.        “Facilities Fee Letter” means the letter agreement, dated as  of  August 21,  2017  among the  Borrower, Bank of America, MLPFSMerrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo  Bank and WFS.        “Facility Fee” has the meaning specified in Section 2.09(a).        “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not  materially  more onerous to comply with) and any current or future regulations or official interpretations thereof and  any agreements entered into pursuant to Section 1471(b)(1) of the Code.        “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of  the rates on  overnight federal funds transactions with  members of  the Federal Reserve System, as  published by the Federal Reserve Bank of New York on the Business Day next succeeding such day;  provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate  on such transactions on the next preceding Business Day as so published on the next succeeding Business  Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds  Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of  1%) charged to Bank of America on such day on such transactions as determined by the Administrative                                       11





 






 Agent; provided further that if the Federal Funds Rate would otherwise be less than 0.00%, the Federal  Funds Rate shall be deemed to be 0.00%.        “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other than  that in which the Borrower is resident for tax purposes (including such a Lender when acting in  the  capacity of the L/C Issuer).  For purposes of this definition, the United States, each State thereof and the  District of Columbia shall be deemed to constitute a single jurisdiction.        “FRB” means the Board of Governors of the Federal Reserve System of the United States.        “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C  Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than  L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders or Cash Collateralized in  accordance with the terms hereof and (b) with respect to the  Swing Line Lender, such Defaulting Lender’s Applicable Percentage of the participation in any Swing  Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation  has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.        “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.        “GAAP”  means generally accepted accounting principles in the United States set forth in the  opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified  Public Accountants and statements and pronouncements of the Financial Accounting Standards Board,  consistently applied and as in effect from time to time.        “Governmental Authority” means the government of the United States or any other nation, or of  any  political subdivision thereof, whether state  or  local, and any  agency, authority, instrumentality,  regulatory  body, court,  central bank  or  other entity  exercising  executive, legislative, judicial, taxing,  regulatory or  administrative powers or  functions of  or  pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).        “Guarantee” of  or by any Person (the “guarantor”) means any obligation, contingent or  otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness  of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including  any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for  the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the  purchase of) any security for the payment of such Indebtedness, (b) to  purchase or lease property,  securities or services for the purpose of assuring the owner of such Indebtedness of the payment of such  Indebtedness or other obligation, (c) to maintain working capital, equity capital or any other financial  statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such  Indebtedness or (d) as an account party in respect of any letter of credit or letter of guaranty issued to  support such Indebtedness; provided, however, that the term “Guarantee” shall not include endorsements  for collection or deposit in the ordinary course of business.  The amount of  any Guarantee shall be  deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or  portion thereof, in  respect of which such  Guarantee is made or, if not  stated or determinable, the  maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in  good faith.  The term “Guarantee” as a verb has a corresponding meaning.                                        12





 






       “Hazardous  Materials”  means  (a)  petroleum  products  and  byproducts,  asbestos,  urea  formaldehyde foam insulation, polychlorinated biphenyls, radon gas, chlorofluorocarbons and all other  ozone-depleting substances and (b) any chemical, material, substance, waste, pollutant or contaminant  that is prohibited, limited or regulated by or pursuant to any law relating to the environment.         “Hedging Agreement” means any interest rate protection agreement, foreign currency exchange agreement,  commodity  price  protection  agreement  or  other  interest  or  currency  exchange  rate  or commodity price hedging arrangement.        “Honor Date” has the meaning set forth in Section 2.03(c)(i).         “Increase Effective Date” has the meaning set forth in Section 2.03(l)(iii).         “Indebtedness”  means,  as  to  any  Person  at  a  particular  time,  without  duplication,  all  of  the  following  whether  or  not  included  as  indebtedness  or  liabilities  in  accordance  with  GAAP:  (a)  all  obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds,  debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other  title retention agreements relating to property or assets purchased by such Person, (d) all obligations of  such Person issued or assumed as the deferred purchase price of property or services (excluding trade  accounts  payable  and  accrued  obligations  incurred  in  the  ordinary  course  of  business),  (e)  all  Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right,  contingent  or  otherwise,  to  be  secured  by)  any  Lien  on  property  owned  or  acquired  by  such  Person,  whether or not the obligations secured thereby have been assumed, (f) all Guarantees by such Person of  Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or  otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all  obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (j) all obligations  of  such  Person  to  make  contingent  cash  payments  in  respect  of  any  acquisition,  to  the  extent  such  obligations  are  or  are  required  to  be  shown  as  liabilities  on  the  balance  sheet  of  such  Person  in  accordance with GAAP and (k) Attributable Indebtedness of Securitization Transactions and Synthetic  Leases.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any  partnership in which such Person is a general partner) to the extent such Person is liable therefor as a  result of such Person’s ownership interest in or other relationship with such entity, except to the extent  the terms of such Indebtedness provide that such Person is not liable therefor.         “Indemnified Taxes” means Taxes other than Excluded Taxes.         “Indemnitees” has the meaning specified in Section 10.04(b).         “Index  Debt”  means the senior, unsecured, non-credit enhanced, long-term  indebtedness for  borrowed money of the Borrower.        “Information” has the meaning specified in Section 10.07.        “Initial L/C Issuer” means each of Bank of America and Wells Fargo and their successors and  assigns, each in its capacity as issuer of Letters of Credit hereunder.        “Interest Payment Date” means (a) as to any Eurodollar Rate Loan, the last day of each Interest  Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a                                        13





 






 Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the  beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan  (including a Swing Line Loan), the last Business Day of each March, June, September and December and  the Maturity Date.         “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date  such  Eurodollar  Rate  Loan  is  disbursed  or  converted  to  or  continued  as  a  Eurodollar  Rate  Loan  and  ending  on  the  date  one,  two,  three  or  six  months  (and,  if  agreed  to  by  all  Lenders,  twelve  months)  thereafter, as selected by the Borrower in its Loan Notice;  provided that:               (a)  any Interest Period that would otherwise end on a day that is not a Business Day        shall be extended to the next succeeding Business Day unless such Business Day falls in another        calendar month, in which case such Interest Period shall end on the next preceding Business Day;               (b)   any Interest Period that begins on the last Business Day of a calendar month (or        on a day for which there is no numerically corresponding day in the calendar month at the end of        such Interest Period) shall end on the last Business Day of the calendar month at the end of such        Interest Period; and               (c)  no  Interest  Period  with respect  to any  Revolving  Loan  that  begins  before  any        Maturity Date for any Lender shall end after such Maturity Date.         “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.         “Internal Revenue Service” means the United States Internal Revenue Service.         “Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or   other taking for public use of, any property of the Borrower or any of its Subsidiaries where the value of   the property subject to such loss, damage, destruction or condemnation is greater than or equal to 10% of   the consolidated assets of the Borrower and its Subsidiaries prior to giving effect to such disposition.         “ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”  published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as  may be in effect at the time of issuance).        “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or  any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.        “Joint Lead Arrangers” means MLPFSBofA Securities and WFS.        “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties,   rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,   including the interpretation or administration thereof by any Governmental Authority charged with the  enforcement, interpretation or administration thereof, and all applicable administrative orders, directed  duties, requests, licenses, authorizations and  permits of, and agreements with, any Governmental  Authority, in each case whether or not having the force of law.                                         14





 






       “L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in  any L/C Borrowing in accordance with its Applicable Percentage.         “L/C  Borrowing”  means  an  extension  of  credit  resulting  from  a  drawing  under  any  Letter  of  Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving  Loans.         “L/C  Credit  Extension”  means,  with  respect  to  any  Letter  of  Credit,  the  issuance  thereof  or  extension of the expiry date thereof, or the increase of the amount thereof.         “L/C Fronting Sublimit” means (i) with respect to the each Initial L/C Issuer, $75,000,000 (or  such greater amount as shall be agreed in writing from time to time by such Initial L/C Issuer) and (ii)  with respect to any other L/C Issuer, the amount agreed in writing by such L/C Issuer and the Borrower,  subject in each case to any increase pursuant to Section 2.03(l).         “L/C Issuer” means, individually or collectively, as applicable, each Initial L/C Issuer, and any  other  Lender  appointed  by  the  Borrower  and  approved  by  the  Administrative Agent  (as long  as  such  Lender  so  appointed  agrees  in  its  sole  discretion  in  writing  to  act  as  such  in  accordance  with  this  Agreement).         “L/C Obligations” means, as at any date of determination, the aggregate amount available to be  drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  For all  purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms  but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such  Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.         “Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each  Person  joining  as  a  Lender  pursuant  to  Section  2.02(f)  and  their  successors  and  assigns  and,  as  the  context requires, includes the Swing Line Lender.         “Lending Office” means, as to any Lender, the office or offices of such Lender described as such  in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time  to time notify the Borrower and the Administrative Agent.         “Letter of Credit” means (a) any letter of credit issued hereunder and (b) any Existing Letter of  Credit.  A Letter of Credit may be a commercial letter of credit or a standby letter of credit; provided,  however, that any commercial Letter of Credit issued hereunder shall provide solely for cash payment  upon presentation of a sight draft.         “Letter  of  Credit  Application”  means  an  application  and  agreement  for  the  issuance  or  amendment of a letter of credit in the form from time to time in use by the L/C Issuer.         “Letter  of  Credit  Expiration  Date”  means  the  day  that  is  five  (5)  Business  Days  prior  to  the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).        “Letter of Credit Fee” has the meaning specified in Section 2.03(h).                                         15





 






       “Letter of Credit Report” means a report substantially in the form of Exhibit H.         “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate Revolving  Commitments and (b) $150,000,000, as such amount may be increased pursuant to Section 2.03(l).  The  Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.         “Leverage Holiday” has the meaning specified in Section 7.05(a).         “Leverage  Ratio”  means,  on  any  date,  the  ratio  of  Total  Debt  on  such  date  to  Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date.        “Lien”  means,  with  respect  to  any  asset,  (a)  any  mortgage,  deed  of  trust,  lien,  pledge,  encumbrance, charge or security interest in or on such asset or (b) the interest of a vendor or a lessor  under any conditional sale agreement, capital lease or title retention agreement (or any financing lease  having substantially the same economic effect as any of the foregoing) relating to such asset.         “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of  a Revolving Loan or Swing Line Loan.         “Loan  Documents”  means  this  Agreement, the  2020  Amendment,  each  Note,  each  Issuer  Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of  Section 2.14 of this Agreement and the Facilities Fee Letter.         “Loan Modification Agreement” means a Loan Modification Agreement in form and substance  reasonably satisfactory to the Administrative Agent and the Borrower, among the Borrower, one or more  Accepting Lenders and the Administrative Agent.         “Loan Modification Offer” has the meaning specified in Section 2.16(a).         “Loan Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one  Type  to  the  other,  or  (c)  a  continuation  of  Eurodollar  Rate  Loans,  in  each  case  pursuant  to  Section  2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by  the  Administrative  Agent   (including  any  form  on  an  electronic  platform  or  electronic  transmission  system  as  shall  be  approved  by  the  Administrative  Agent),  appropriately  completed  and  signed  by  a  Responsible Officer of the Borrower.         “London Banking Day” means any day on which dealings in Dollar deposits are conducted by  and between banks in the London interbank eurodollar market.         “Maintenance Leverage Ratio” has the meaning specified in Section 7.05(a).         “Margin  Stock”  shall  have  the  meaning  assigned  to  such  term  in  Regulation  U issued  by  the  FRB.         “Material Adverse Effect” means a materially adverse effect on the financial condition, results of  operations or business of the Borrower and the Subsidiaries, taken as a whole.; provided, that during the  period from the 2020 Amendment Effective Date through and including March 31, 2021, the impacts of  the  Coronavirus  Disease  2019  (“COVID-19”),  the  declaration  on  March  13,  2020  of  the  national  emergency  relating  to  COVID-19,  and  related  legislative,  regulatory  and  execution  actions  on  the                                        16





 






 financial  conditions,  results  of  operations  or  business  of  the  Borrower  and  the  Subsidiaries  will  be  disregarded from any determination of “Material Adverse Effect”.         “Material  Indebtedness”  means  Indebtedness  (other  than  the  Loans  and  Letters  of  Credit),  or obligations  in  respect  of  any  Hedging  Agreement,  of  the  Borrower  or  any  of  the  Subsidiaries  in  a principal  amount  exceeding  $100,000,000.   For  purposes  of  determining  Material  Indebtedness,  the “principal  amount”  of  the  obligations  of  the  Borrower  or  any  Subsidiary  in  respect  of  any  Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that  the  Borrower  or  such  Subsidiary  would  be  required  to  pay  if  such  Hedging  Agreement  were terminated at such time.        “Material  Subsidiary”  means  and  includes,  at  any  time,  any  Subsidiary,  except  Subsidiaries which,  if  aggregated  and  considered  as  a  single  Subsidiary,  would  not  meet  the  definition  of  a “significant subsidiary” contained as of the date hereof in Regulation S-X of the Securities and Exchange Commission.        “Maturity Date” means (i) with respect to any Lender that has not extended the Maturity Date of  its Commitment pursuant to Section 2.16, the Original Maturity Date and (ii) with respect to any tranche  of  Loans  extended  pursuant  to  a  Loan  Modification  Offer,  the  final  maturity  date  as  specified  in the  applicable  Loan  Modification  Offer  accepted  by  the  respective  Accepting  Lenders; provided,  in each  case,  that  if such  day is  not  a  Business  Day, the  applicable  Maturity  Date  shall  be  the Business Day  immediately preceding such day.         “Maximum Leverage Ratio” has the meaning specified in Section 7.05.         “Maximum Rate” has the meaning specified in Section 10.09.        “MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity as joint  lead arranger and joint book manager, and its successors and assigns.        “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.         “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.         “Non-Accepting Lender” has the meaning specified in Section 2.16(a).         “Non-Consenting Lender” has the meaning specified in Section 10.13.         “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).         “Note”  or  “Notes”  means the  Revolving  Notes and/or  the  Swing  Line  Note, individually or   collectively, as appropriate.         “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of,   the Borrower arising under any Loan Document or otherwise with respect to any Loan or Letter of  Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due  or to become due, now existing or hereafter arising and including interest and fees that accrue after the  commencement by or against the Borrower or any Subsidiary thereof of any proceeding under any Debtor  Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest   and fees are allowed claims in such proceeding.                                        17





 






      “OFAC”  means  the  Office  of  Foreign  Assets  Control  of  the United States  Department  of  the Treasury.        “Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S.  jurisdiction);  (b)  with  respect  to  any  limited  liability  company,  the  certificate  or  articles  of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust  or  other  form  of  business  entity,  the  partnership,  joint  venture  or  other  applicable  agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection  with  its  formation  or  organization  with  the  applicable  Governmental  Authority  in  the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.        “Original Maturity Date” means the date that is the fifth anniversary of the Second Amendment and Restatement Effective Date.        “Other Connection Taxes” means, with respect to any recipient of a payment hereunder, Taxes imposed  as  a  result  of  a  present  or  former  connection  between  such  recipient  and  the  jurisdiction imposing such Tax (other than connections arising solely from such recipient having executed, delivered, become  a party  to,  performed its  obligations  under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).        “Other Taxes” means all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or under any other Loan  Document  or  from the  execution,  delivery  or  enforcement  of,  or  otherwise  with  respect  to,  this Agreement  or  any  other  Loan  Document,  except  any  such  Taxes  that  are  Other  Connection  Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 10.13).        “Outstanding  Amount”  means  (a)  with  respect  to  any  Loans  on  any  date,  the  aggregate outstanding  principal  amount  thereof  after  giving  effect  to  any  borrowings  and  prepayments  or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.        “Participant” has the meaning specified in Section 10.06(d).        “Participant Register” has the meaning specified in Section 10.06(d).        “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.        “Pension Act” means the Pension Protection Act of 2006, as amended from time to time.        “Permitted Amendment” has the meaning specified in Section 2.16(c).        “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.                                       18





 






      “Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the  provisions  of  Title  IV  of  ERISA  or  Section 412  of  the Internal  Revenue  Code  or  Section  302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would  under  Section  4069  of  ERISA  be  deemed  to  be)  an  “employer”  as  defined  in  Section  3(5)  of ERISA.        “Platform” has the meaning specified in Section 6.04.       “Pricing Level” has the meaning specified in the definition of “Applicable Rate”.       “Pro Forma Basis” means, for purposes of calculating the financial covenant set forth in Section 7.05(a), any Disposition, Involuntary Disposition, Acquisition or Restricted Payment shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such transaction  for  which  the  Borrower  was  required  to  deliver  financial  statements  pursuant  to  Section 6.04(a) or (b).  In connection with the foregoing, (i)(a) with respect to any Disposition or Involuntary Disposition, income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and (b) with respect to any Acquisition, income statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth  in  Section  1.01  and  (B)  such  items  are  supported  by  financial  statements  or  other  information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by the Borrower  or  any  Subsidiary  (including  the  Person  or  property  acquired)  in  connection  with  such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if  such  Indebtedness  has  a  floating  or  formula  rate,  shall  have  an  implied  rate  of  interest  for  the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.        “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.        “Public Lender” has the meaning specified in Section 6.04.        “QFC Credit Support” has the meaning specified in Section 10.22.        “Qualified Acquisition” means any acquisition by the Borrower or any Subsidiary of (i) all or substantially all of the assets of a Person or line of business of such Person, or (ii) at least a majority of the  Equity  Interests  of  a  Person,  in  each  case,  where  the  aggregate  consideration  (in  whatever  form) payable by the Borrower and its Subsidiaries is greater than $1,000,000,000.        “Register” has the meaning specified in Section 10.06(c).       “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors,  officers,  employees,  agents,  trustees  and  advisors  of  such  Person  and  of  such  Person’s Affiliates.        “Removal Effective Date” has the meaning specified in Section 9.06(b).                                       19





 






       “Replaced Lender” has the meaning specified in Section 10.13.         “Request  for  Credit  Extension”  means  (a)  with  respect  to  a  Borrowing,  conversion  or  continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit  Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.         “Required Lenders” means, at any time, Lenders holding in the aggregate more than 50% of (a)  the unfunded Commitments, the outstanding Loans, L/C Obligations and participations therein or (b) if  the  Commitments  have  been  terminated,  the  outstanding  Loans,  L/C  Obligations  and  participations  therein.   The  unfunded  Commitments  of,  and  the  outstanding  Loans  held  or  deemed  held  by,  any  Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.         “Resignation Effective Date” has the meaning specified in Section 9.06(a).         “Resolution  Authority”  means  an  EEA  Resolution  Authority  or,  with  respect  to  any  UK  Financial Institution, a UK Resolution Authority.         “Responsible  Officer”  means  the  chief  executive  officer,  president,  chief  financial  officer,  treasurer,  assistant  treasurer  or  controller  of  the  Borrower  and, solely  for  purposes  of  the delivery  of  certificates pursuant to Section 4.01, the secretary or any assistant secretary of the Borrower and, solely  for purposes of notices given pursuant to Article II, any other officer or employee of the Borrower so  designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or  employee  of  the  Borrower  designated  in  or  pursuant  to  an  agreement  between  the  Borrower  and  the  Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of the  Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership  and/or  other  action  on  the  part  of  the  Borrower  and  such  Responsible  Officer  shall  be  conclusively  presumed to have acted on behalf of the Borrower.         “Restricted Payment” means (a) any dividend or other distribution (whether in cash, securities or  other  property)  with  respect  to  any  Equity  Interests  in  the  Borrower  or  any  Subsidiary,  or  (b)  any  payment (whether in cash, securities or other property), including any sinking fund or similar deposit,  other than a payment to the extent consisting of Equity Interests of equal or junior ranking, on account of  the purchase, redemption, retirement, acquisition, cancelation or termination of any Equity Interests in  the Borrower or any SubsidiaryShare Repurchase.  It is understood that the withholding of shares, and  the payment of cash to the Internal Revenue Service in an amount not to exceed the value of the withheld  shares, by the Borrower in connection with any of its stock incentive plans shall not constitute Restricted  Payments.         “Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations and (c) purchase  participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to  exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and  Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may  be adjusted from time to time in accordance with this Agreement.         “Revolving Loan” has the meaning specified in Section 2.01(a).         “Revolving Note” has the meaning specified in Section 2.11(a).                                        20





 






       “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global, Inc., and   any successor thereto.         “Sale and Leaseback Transaction” means, with respect to the Borrower or any Subsidiary, any   arrangement, directly or indirectly, with any Person whereby the Borrower or such Subsidiary shall sell   or transfer any property used or useful in its business, whether now owned or hereafter acquired, and  thereafter rent or lease such property or other property that it intends to use for substantially the same  purpose or purposes as the property being sold or transferred.        “Sanctions”  means any  economic sanctions administered or  enforced by  the United States   Government (including without limitation, OFAC), the European Union, or Her Majesty’s Treasury.        “SEC”  means the  Securities  and Exchange  Commission,  or any  Governmental Authority  succeeding to any of its principal functions.        “Second Amendment and Restatement Effective Date” means September 15, 2017.        “Securitization Transaction” means, with respect to  any Person, any financing transaction or  series of financing transactions (including factoring arrangements) pursuant to which such Person or any  Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts,  payments, receivables, rights to  future lease payments or residuals or similar rights to payment to a  special purpose subsidiary or affiliate of such Person.        “Share Repurchase” means the payment (whether in cash, securities or other property), including  any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,  cancelation or termination of any Equity Interests in the Borrower or any Subsidiary, other than (i) a  payment to the extent consisting of Equity Interests of equal or junior ranking and (ii) acquisitions of   Equity Interests pursuant to employee and/or director stock plans or employee and/or director   compensation plans, including acquisitions (or withholding) of Equity Interests in the Borrower or any   Subsidiary pursuant to any such plan pursuant to the term thereof or in satisfaction of withholding or   similar taxes payable by any present or former officer, employee, director or member of management.         “Specified 2020 Leverage Period” means any period of four consecutive fiscal quarters of the   Borrower ending June 30, 2020, September 30, 2020 or December 31, 2020.         “Specified 2021 Leverage Period” means the period of four consecutive fiscal quarters of the   Borrower ending March 31, 2021.         “Subordinated Notes” means the Borrower’s Zero Coupon Convertible Subordinated Notes due  2021, in an aggregate principal amount at maturity of $164,055,000, and any other Indebtedness  subordinated to the Obligations that refinances all or any portion of such notes or for which all or any   portion of such notes are exchanged.         “Subordinated Note Documents” mean the indenture under which the Subordinated Notes were   issued and  all other instruments, agreements and  other documents evidencing or governing the   Subordinated Notes or providing for any Guarantee or other right in respect thereof.                                         21





 






      “Subsidiary”  of  a  Person  means  a  corporation,  partnership,  joint  venture,  limited  liability company  or  other  business  entity  of  which  a  majority  of  the  shares  of  Voting  Stock  is  at  the  time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.        “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.        “Swing Line Loan” has the meaning specified in Section 2.04(a).        “Swing  Line  Loan  Notice”  means  a  notice  of  a  Borrowing  of  Swing  Line  Loans  pursuant  to Section 2.04(b), which shall be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approve by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.        “Swing Line Note” has the meaning specified in Section 2.11(a).       “Swing  Line  Sublimit”  means  an  amount  equal  to  the  lesser  of  (a)  $100,000,000 and  (b)  the Aggregate  Revolving  Commitments.   The  Swing  Line  Sublimit  is  part  of,  and not  in addition  to,  the Aggregate Revolving Commitments.        “Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or  similar  off-balance  sheet  financing  arrangement  whereby  the  arrangement  is  considered  borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on a balance sheet under GAAP.        “Supported QFC” has the meaning specified in Section 10.22.        “Taxes”  means  all  present  or  future  taxes,  levies,  imposts,  duties,  deductions,  withholdings (including  backup  withholding),  assessments,  fees  or  other  charges  imposed  by  any  Governmental Authority, including any interest, additions to tax or penalties applicable thereto.        “Total Debt” means, at any time, the consolidated total Indebtedness of the Borrower and the Subsidiaries at such time (excluding (i) Indebtedness of the type described in clause (h) of the definition of such term, except to the extent of any unreimbursed drawings thereunder, as determined in accordance with GAAP, and (ii) Indebtedness incurred for the purpose of consummating a Qualified Acquisition if (and for so long as) (A) such Qualified Acquisition has not been consummated and (B) (x) the proceeds of such Indebtedness are held by the Borrower in the form of unrestricted cash or cash equivalents or (y) such  Indebtedness  is  subject  to  mandatory  redemption  in  the  event  such  Qualified  Acquisition  is  not consummated).        “Total  Revolving  Outstandings”  means  the  aggregate  Outstanding  Amount  of  all  Revolving Loans, all Swing Line Loans and all L/C Obligations.        “Transactions” has the meaning specified in Section 5.02.                                        22





 






       “Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate  Loan.         “UK  Financial  Institution”  means  any  BRRD  Undertaking  (as  such  term  is  defined  under  the  PRA  Rulebook  (as  amended  from  time  to  time)  promulgated  by  the  United  Kingdom  Prudential  Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from  time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain  credit institutions and investment firms, and certain affiliates of such credit institutions or investment  firms.         “UK  Resolution  Authority”  means  the  Bank  of  England  or  any  other  public  administrative  authority having responsibility for the resolution of any UK Financial Institution.         “United States” and “U.S.” mean the United States of America.         “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).         “USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate  Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed  into law October 26, 2001)).         “U.S. Special Resolution Regimes” has the meaning specified in Section 10.22.         “Voting  Stock”  means,  with  respect  to  any  Person,  Equity  Interests  issued  by  such  Person  the  holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors  (or  persons  performing  similar  functions)  of  such  Person,  even  though  the  right  so  to  vote  has  been  suspended by the happening of such a contingency.         “Wells Fargo Bank” means Wells Fargo Bank, National Association.         “WFS” means Wells Fargo Securities, LLC, in its capacity as joint lead arranger and joint book  manager.         “Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the time owned by the Borrower directly or indirectly through other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly, by the Borrower.        “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial  withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of  ERISA.         “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-  In  Legislation  for  the  applicable  EEA  Member  Country,  which  write-down  and  conversion  powers  are  described in the EU Bail-In Legislation Schedule., and (b) with respect to the United Kingdom, any powers  of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the  form of a liability of any UK Financial Institution or any contract or instrument under which that liability  arises, to convert all or part of that liability into shares, securities or obligations of that person or any other  person, to provide that any such contract or instrument is to have effect as if a right had been exercised                                        23





 






 under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.   1.02 Other Interpretive Provisions.         With  reference  to  this  Agreement  and  each  other Loan  Document,  unless otherwise  specified  herein or in such other Loan Document:               (a)  The  definitions  of  terms  herein  shall  apply  equally  to  the  singular  and  plural        forms of the terms defined.  Whenever the context may require, any pronoun shall include the        corresponding  masculine,  feminine  and  neuter  forms.   The  words  “include,”  “includes”  and        “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”        shall be construed to have the same meaning and effect as the word “shall.”  Unless the context        requires  otherwise,  (i)  any  definition  of  or  reference  to  any  agreement,  instrument  or  other        document  (including  any  Organization  Document)  shall  be  construed  as  referring  to  such        agreement,  instrument  or  other  document  as  from  time  to  time  amended,  supplemented  or        otherwise  modified  (subject  to  any  restrictions  on  such  amendments,  supplements  or        modifications set forth herein or in any other Loan Document), (ii) any reference herein to any        Person  shall  be  construed  to  include  such  Person’s  successors  and  assigns,  (iii)  the  words        “hereto”,  “herein,”  “hereof”  and  “hereunder,”  and  words  of  similar  import  when  used  in  any        Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any        particular  provision  thereof,  (iv)  all  references  in  a  Loan  Document  to  Articles,  Sections,        Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and        Schedules to, the Loan Document in which such references appear, (v) any reference to any law        shall  include  all  statutory  and  regulatory  provisions  consolidating,  amending,  replacing  or        interpreting such law and any reference to any law or regulation shall, unless otherwise specified,        refer to such law or regulation as amended, modified or supplemented from time to time, (vi) the        words “asset” and “property” shall be construed to have the same meaning and effect and to refer        to  any  and  all  real  and  personal  property  and  tangible  and  intangible  assets  and  properties,        including cash, securities, accounts and contract rights and (vii) any reference to “L/C Issuer”        shall refer to any L/C Issuer, each L/C Issuer, the applicable L/C Issuer or all L/C Issuers as the        context may require.               (b)   In the computation of periods of time from a specified date to a later specified        date, the word “from” means “from and including;” the words “to” and “until” each mean “to but        excluding;” and the word “through” means “to and including.”               (c)  Section  headings  herein  and  in  the  other  Loan  Documents  are  included  for        convenience of reference only and shall not affect the interpretation of this Agreement or any        other Loan Document.   1.03 Accounting Terms.         (a)  Generally.  Except as otherwise specifically prescribed herein, all accounting terms not  specifically or completely defined herein shall be construed in conformity with, and all financial data  (including financial ratios and other financial calculations) required to be submitted pursuant to  this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from  time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements;  provided, however, that calculations of  Attributable Indebtedness under any Synthetic Lease or the                                        24





 






 implied interest component of any Synthetic Lease shall be made by the Borrower in accordance with   accepted financial practice and consistent with the terms of such Synthetic Lease.         (b)   Changes in GAAP.  The Borrower will provide a written summary of material changes in  GAAP  and in the consistent application thereof with each annual and quarterly Compliance Certificate   delivered in accordance with Section 6.04(c).  If at any time any change (or any application thereof  following such change) in GAAP would affect the computation of any financial ratio or requirement set  forth in any Loan Document, and either the Borrower or the Required Lenders shall so  request, the  Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or  requirement to preserve the original intent thereof in light of such change in GAAP or the application   thereof (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio   or requirement shall continue to be computed in accordance with GAAP in effect prior to such change   therein (or the application thereof) and (ii) the Borrower shall provide to the Administrative Agent and   the Lenders financial statements and  other documents required under this Agreement or as requested  hereunder setting forth a reconciliation between calculations of such ratio or requirement made before   and after giving effect to such change in GAAP (or the application thereof).         (c)  Calculations.  Notwithstanding the above, the parties hereto acknowledge and agree that   all calculations of the financial covenant in Section 7.05(a) shall be made on a Pro Forma Basis.         (d)   FASB ASC 825 and FASB ASC 470-20.  Notwithstanding the above, for purposes of   determining compliance with any covenant (including the computation of any financial covenant)   contained herein, Indebtedness of  the Borrower and its Subsidiaries shall be  deemed to be carried at   100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC   470-20 on financial liabilities shall be disregarded.   1.04 Rounding.         Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall   be calculated by dividing the appropriate component by the other component, carrying the result to one   place more than the number of places by which such ratio is expressed herein and rounding the result up   or down to the nearest number (with a rounding-up if there is no nearest number).   1.05 Times of Day.         Unless otherwise specified, all references herein to times of day shall be references to Eastern   time (daylight or standard, as applicable).   1.06 Letter of Credit Amounts.         Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed   to be  the stated amount of  such Letter of Credit in effect at such time; provided, however, that with   respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto,   provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of   Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to   all such increases, whether or not such maximum stated amount is in effect at such time.   1.07 Divisions.                                         25





 






      For all purposes under the Loan Documents, in connection with any division or plan of division under  Delaware  law  (or  any  comparable  event  under  a  different  jurisdiction’s  laws):  (a)  if  any  asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person,  then  it  shall  be  deemed  to  have  been  transferred  from  the  original  Person  to  the  subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.                                    ARTICLE II                    THE COMMITMENTS AND CREDIT EXTENSIONS  2.01 Commitments.        Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided, however, that after giving effect to any Borrowing of  Revolving  Loans,  (i)  the  Total  Revolving  Outstandings  shall  not  exceed  the  Aggregate  Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such  Lender’s  Applicable  Percentage  of  the  Outstanding  Amount  of  all  L/C  Obligations  plus  such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment.  Within the limits of each Lender’s Revolving Commitment, and subject  to  the  other  terms  and  conditions  hereof,  the  Borrower  may  borrow  under  this  Section  2.01, prepay under Section 2.05, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as further provided herein.  2.02 Borrowings, Conversions and Continuations of Loans.       (a)   Each  Borrowing,  each  conversion  of  Loans  from  one  Type  to  the  other,  and  each continuation of  Eurodollar  Rate  Loans shall  be  made upon the  Borrower’s irrevocable  notice to the  Administrative Agent, which may be given by (A) telephone, or (B) a Loan Notice; provided that any  telephonic notice must be confirmed promptly by delivery to the Administrative Agent of a Loan Notice.  Each such Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three  Business Days prior to  the  requested date  of  any  Borrowing of, conversion to or continuation of,  Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the  requested date of any Borrowing of Base Rate Loans; provided, however, that if the Borrower wishes to  request Eurodollar Rate Loans having an Interest Period other  than one,  two, three or  six months in  duration as provided in the definition of “Interest Period,” the applicable notice must be received by the  Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such  Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to  the Lenders of such request and determine whether the requested Interest Period is acceptable to all of  them.  Not  later  than 11:00 a.m., three Business Days before  the  requested date  of  such Borrowing,  conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by  telephone) whether or not the requested Interest Period has been consented to by all the Lenders.  Each  Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c)  and 2.04(c), each Borrowing  of  or  conversion to Base  Rate  Loans shall be in a principal amount of $1,000,000  or  a whole multiple  of $500,000  in excess thereof.  Each Loan Notice  shall  specify  (i)  whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a                                        26





 






 continuation of Eurodollar Rate Loans, (ii) the requested date of  the Borrowing, conversion or   continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to   be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans   are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the   Borrower fails to specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a timely   notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted   to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last   day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the   Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any Loan   Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of   one month.         (b)   Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each   Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a   conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each   Lender of the details of any automatic conversion to  Base Rate Loans as described in the preceding   subsection.  In the case of a Borrowing, each Lender shall make the amount of its Loan available to the   Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than   1:00 p.m. on  the Business Day specified in the applicable Loan  Notice.  Upon satisfaction of the  applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension,  Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like  funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the  books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case  in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by  the Borrower; provided, however, that if, on the date of a Borrowing of Revolving Loans, there are L/C  Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in  full of any such L/C Borrowings and second, shall be made available to the Borrower as provided above.        (c)   Except as otherwise provided herein, a Eurodollar Rate Loan may be  continued or  converted only on the last day of the Interest Period for such Eurodollar Rate Loan.  During the existence  of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without  the consent of the Required Lenders, and the Required Lenders may demand that any or all of the then  outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.        (d)    The Administrative Agent shall promptly notify the Borrower and the Lenders of the  interest rate applicable to any Interest Period for Eurodollar Rate Loans upon  determination of such  interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the  Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base  Rate promptly following the public announcement of such change.        (e)   After giving effect to  all Borrowings, all conversions of Loans from one Type to the  other, and all continuations of Loans as the same Type, there shall not be more than 10 Interest Periods in  effect with respect to all Loans.        (f)    The Borrower may, at any time and from time to time, upon prior written notice by the  Borrower to the Administrative Agent increase the Aggregate Revolving Commitments (which increase  (x) may provide for the payment of upfront fees in consideration for such increase solely to existing and  new Lenders participating in such increase and (y) at the election of the Borrower, may increase the  Letter of Credit Sublimit and/or the Swing Line Sublimit in a ratable amount relative to the increase in                                        27





 






the Aggregate Revolving Commitments) by a maximum aggregate amount of up to THREE HUNDRED AND FIFTY MILLION DOLLARS ($350,000,000) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or new Revolving Commitments from any other Person selected  by  the  Borrower  and  reasonably  acceptable  to  the  Administrative  Agent  and  the  L/C  Issuer; provided that:              (A)  any such increase shall be in a minimum principal amount of $10,000,000 and in       integral multiples of $1,000,000 in excess thereof;              (B)   no Default or Event of Default shall exist and be continuing at the time of any       such increase;              (C)   no existing Lender shall be under any obligation to increase its Commitment and       any  such  decision  whether  to  increase  its  Commitment  shall  be  in  such  Lender’s  sole  and       absolute discretion;              (D)  (1) any new Lender shall join this Agreement by executing a joinder agreement       substantially in the form of Exhibit G attached hereto and/or (2) any existing Lender electing to      increase its Commitment shall have executed a commitment agreement reasonably satisfactory to      the Administrative Agent;             (E)    the Borrower is in compliance with the financial covenant set forth in Section       7.05(a) at the time of any such increase;              (F)   as  a  condition  precedent  to  such  increase,  the  Borrower  shall  deliver  to  the       Administrative Agent a certificate of the Borrower dated as of the date of such increase signed by       a Responsible Officer of the Borrower (1) certifying and attaching the resolutions adopted by the       Borrower  approving  or  consenting  to  such  increase,  and  (2)  certifying  that,  before  and  after       giving effect to such increase, (x) the representations and warranties contained in Article V and      the other Loan Documents are true and correct in all material respects on and as of the date of      such increase, except that (i) any such representation and warranty that is qualified by materiality      or a reference to Material Adverse Effect is true and correct in all respects on and as of the date      of  such  increase  and  (ii)  to  the  extent  that  any  such  representation  and  warranty  specifically      refers to an earlier date, each such representation and warranty is true and correct in all material      respects as of such earlier date (except that any such representation and warranty that is qualified      by materiality or reference to Material Adverse Effect is true and correct in all respects as of      such earlier date), and except that for purposes of this Section 2.02(f), the representations and       warranties  contained  in  Section  5.05  shall  be  deemed  to  refer  to  the  most  recent  statements       furnished pursuant  to clauses (a) and (b), respectively, of Section 6.04, and (y) no Default  or       Event of Default exists; and              (G)  Schedule 2.01 shall be deemed revised to reflect the new Commitments made by       the applicable Lenders pursuant to this Section 2.02(f).              Upon  the  effectiveness  of  any  such  increase,  subject  to  the  payment  of  applicable       amounts pursuant to Section 3.05 in connection therewith, the Borrower shall be deemed to have       made  such  borrowings  and  repayments  of  the  Loans,  and  the  Lenders  shall  make  such       adjustments of outstanding Loans between and among them, as shall be necessary to effect the       reallocation of the Commitments such that, after giving effect thereto, the Loans shall be held by                                       28





 






      the  Lenders  (including  any  new  Lenders)  ratably  in  accordance  with  their  respective       Commitments.  2.03 Letters of Credit.       (a)   The Letter of Credit Commitment.             (i)    Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in      reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time       on any Business Day during the period from the Second Amendment and Restatement Effective       Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars       for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of       Credit  previously  issued  by  it,  in  accordance  with  subsection  (b)  below,  and  (2)  to  honor       drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters       of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder;       provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit,       (w) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,       (x) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s       Applicable  Percentage  of  the  Outstanding  Amount  of  all  L/C  Obligations  plus  such  Lender’s       Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such       Lender’s Revolving Commitment, (y) the Outstanding Amount of the L/C Obligations shall not       exceed the Letter of Credit Sublimit and (z) the Outstanding Amount of L/C Obligations with       respect to any L/C Issuer shall not exceed such L/C Issuer’s L/C Fronting Sublimit.  Each request       by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a       representation  by  the  Borrower  that  the  L/C  Credit  Extension  so  requested  complies with the       conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and       subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall       be  fully  revolving,  and  accordingly  the  Borrower  may,  during  the  foregoing  period,  obtain       Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and       reimbursed.  Furthermore,  each  Lender acknowledges and  confirms  that  it  has a  participation      interest in the liability of the L/C Issuer under the Existing Letters of Credit in a percentage equal      to its Applicable Percentage of the Revolving Loans.  The Borrower’s reimbursement obligations      in  respect  of  the  Existing  Letters  of  Credit,  and  each  Lender’s  obligations  in  connection      therewith, shall be governed by the terms of this Agreement.              (ii)  The L/C Issuer shall not issue any Letter of Credit if:                    (A)   subject to Section 2.03(b)(iii), the expiry date of such requested Letter            of  Credit  would  occur  more  than  twelve  months  after  the  date  of  issuance  or  last            extension, unless the Required Lenders have approved such expiry date; or                   (B)    the expiry date of such requested Letter of Credit would occur after the            date twelve months after the Maturity Date, unless all the Lenders have approved such            expiry date.             (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:                   (A)   any  order,  judgment  or  decree  of  any  Governmental  Authority  or            arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such                                       29





 






      Letter  of  Credit,  or  any  Law  applicable  to  the  L/C  Issuer  or  any  request  or  directive       (whether  or  not  having  the  force  of  law)  from  any  Governmental  Authority  with       jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from,       the issuance of letters of credit generally or such Letter of Credit in particular or shall       impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve       or  capital  requirement  (for  which  the  L/C  Issuer  is  not  otherwise  compensated       hereunder) not in effect on the Second Amendment and Restatement Effective Date, or       shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not       applicable on the Second Amendment and Restatement Effective Date and which the L/C       Issuer in good faith deems material to it;              (B)   the issuance of such Letter of Credit would violate one or more policies       of the L/C Issuer applicable to letters of credit generally;              (C)   such  Letter  of  Credit  is  to  be  denominated  in  a  currency  other  than       Dollars; or              (D)  any Lender is at that time a Defaulting Lender, unless the L/C Issuer has       entered into arrangements, including the delivery of Cash Collateral, satisfactory to the       L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C       Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv))       with  respect  to  the  Defaulting  Lender  arising  from  either  the  Letter  of  Credit  then       proposed to be issued or that Letter of Credit and all other L/C Obligations as to which       the  L/C  Issuer  has  actual  or  potential  Fronting  Exposure,  as  it  may  elect  in  its  sole       discretion.        (iv)  The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be  permitted  at  such  time  to  issue  the  Letter  of  Credit  in  its  amended  form  under  the  terms hereof.        (v)   The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the  L/C  Issuer  would  have  no  obligation  at  such  time  to  issue  such  Letter  of  Credit  in  its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.        (vi)  The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit  as  fully  as  if  the  term  “Administrative  Agent”  as  used  in  Article  IX  included  the  L/C Issuer  with  respect  to  such  acts  or  omissions,  and  (B)  as  additionally  provided  herein  with respect to the L/C Issuer.  (b)   Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of       Credit.        (i)   Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in                                 30





 






 the form of a Letter of Credit Application, appropriately completed and signed by a Responsible  Officer of the Borrower.  Such Letter of Credit Application must be received by the L/C Issuer  and the Administrative Agent not later than 11:00 a.m. at least five (5) Business Days (or such  later  date  and  time  as  the  Administrative  Agent  and  the  L/C  Issuer  may  agree  in  a  particular  instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the  case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of  Credit  Application  shall  specify  in  form  and  detail  satisfactory  to  the  L/C  Issuer:  (A)  the  proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the  amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof;  (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the  full text of any certificate to be presented by such beneficiary in case of any drawing thereunder;  (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the  L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of  Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C  Issuer  (A)  the  Letter  of  Credit  to  be  amended;  (B)  the  proposed  date  of  amendment  thereof  (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other  matters as the L/C Issuer may reasonably require.  Additionally, the Borrower shall furnish to the  L/C  Issuer  and the Administrative  Agent  such  other documents  and  information  pertaining  to  such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the  L/C Issuer or the Administrative Agent may reasonably require.         (ii)  Promptly after receipt of any Letter of Credit Application, the L/C Issuer will  confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent  has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C  Issuer  will  provide the  Administrative  Agent  with  a copy  thereof.   Unless  the  L/C Issuer  has  received written notice from any Lender, the Administrative Agent or the Borrower, at least one  Business Day prior to the requested date of issuance or amendment of the applicable Letter of  Credit, that one or more applicable conditions contained in Article IV shall not be satisfied, then,  subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a  Letter of Credit for the account of the Borrower or the applicable Subsidiary or enter into the  applicable  amendment,  as  the  case  may  be,  in  each  case  in  accordance  with  the  L/C  Issuer’s  usual and customary business practices.  Immediately upon the issuance of each Letter of Credit,  each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase  from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product  of such Lender’s Applicable Percentage times the amount of such Letter of Credit.        (iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C  Issuer  may,  in  its  sole  discretion,  agree  to  issue  a  Letter  of  Credit  that  has  automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-  Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once  in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by  giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice  Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is  issued.  The Borrower shall not be required to make a specific request to the L/C Issuer for any  such extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be  deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such  Letter  of  Credit  at  any  time to an  expiry  date not  later  than  the date  twelve months after  the  Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A)  the L/C Issuer has determined that it would not be permitted, or would have no obligation, at                                  31





 






 such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof  (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has  received  notice  (which  may  be  by  telephone or in writing) on or before the day that is seven  Business  Days  before  the  Non-Extension  Notice  Date  from  the  Administrative  Agent,  any  Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each case directing the L/C Issuer not to permit such extension.        (iv)   Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.  (c)   Drawings and Reimbursements; Funding of Participations.         (i)   Upon  receipt  from  the  beneficiary  of  any  Letter  of  Credit  of  any  notice  of  drawing  under  such  Letter  of  Credit,  the  L/C  Issuer  shall  notify  the  Borrower  and  the  Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any payment by the L/C  Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse  the  L/C  Issuer  through  the  Administrative  Agent  in  an  amount  equal  to  the  amount  of  such  drawing.  If the Borrower does not reimburse the L/C Issuer by such time, the Administrative  Agent  shall  promptly  notify  each Lender of  the  Honor  Date, the amount of the unreimbursed  drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage  thereof.  In such event, the Borrower shall be deemed to have requested a Borrowing of Base  Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,  without regard to the minimum and multiples specified in Section 2.02 for the principal amount  of  Base  Rate  Loans,  but  subject  to  the  conditions  set  forth  in  Section  4.02  (other  than  the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments.  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be  given  by  telephone  if  immediately  confirmed  in  writing;  provided  that  the  lack  of  such  an  immediate confirmation shall not affect the conclusiveness or binding effect of such notice.         (ii)  Each  Lender  shall  upon  any  notice  pursuant  to  Section  2.03(c)(i)  make  funds  available (and the Administrative Agent may apply Cash Collateral provided for this purpose) to  the Administrative Agent for the account of the L/C Issuer at the Administrative Agent’s Office  in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00  p.m.  on  the  Business  Day  specified  in  such  notice  by  the  Administrative  Agent,  whereupon,  subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall  be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative  Agent shall remit the funds so received to the L/C Issuer.         (iii) With respect to any Unreimbursed Amount that is not (x) fully refinanced by a  Borrowing  of  Base  Rate  Loans  because  the  conditions  set  forth  in  Section  4.02  cannot  be  satisfied or for any other reason or (y) otherwise reimbursed by the Borrower on the Honor Date,  the  Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the  amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be  due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In  such event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer  pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such                                  32





 






 L/C  Borrowing  and  shall  constitute  an  L/C  Advance  from  such  Lender  in  satisfaction  of  its  participation obligation under this Section 2.03.         (iv)  Until  each  Lender  funds  its  Revolving  Loan  or  L/C  Advance pursuant  to  this  Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit,  interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the  account of the L/C Issuer.         (v)   Each  Lender’s  obligation  to  make  Revolving  Loans  or  L/C  Advances  to  reimburse the  L/C  Issuer  for  amounts  drawn  under  Letters  of  Credit,  as  contemplated  by this  Section  2.03(c),  shall  be  absolute  and  unconditional  and  shall  not  be  affected  by  any  circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which  such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason  whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or  condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s  obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions  set  forth  in  Section  4.02  (other  than  delivery  by  the  Borrower  of  a  Loan  Notice).   No  such  making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to  reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter  of Credit, together with interest as provided herein.         (vi)  If any Lender fails to make available to the Administrative Agent for the account  of  the  L/C  Issuer  any  amount  required  to  be  paid  by  such  Lender  pursuant  to  the  foregoing  provisions  of  this  Section  2.03(c)  by  the  time  specified  in  Section  2.03(c)(ii),  then,  without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation.  A certificate of the L/C Issuer submitted to any Lender (through the Administrative  Agent)  with  respect  to  any  amounts  owing  under  this  clause  (vi)  shall  be conclusive absent manifest error.  (d)    Repayment of Participations.         (i)   At any time after the L/C Issuer has made a payment under any Letter of Credit  and has received from any Lender such Lender’s L/C Advance in respect of such payment in  accordance with Section 2.03(c), if the Administrative Agent receives for the account of the L/C  Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether  directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto  by  the  Administrative  Agent),  the  Administrative  Agent  will  distribute  to  such  Lender  its  Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect  the period of time during which such Lender’s L/C Advance was outstanding) in the same funds  as those received by the Administrative Agent.         (ii)  If any payment received by the Administrative Agent for the account of the L/C  Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances  described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in  its  discretion),  each  Lender  shall  pay  to  the Administrative  Agent  for  the  account of the  L/C                                  33





 






       Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest        thereon from the date of such demand to the date such amount is returned by such Lender, at a        rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of        the  Lenders  under  this  clause  shall  survive  the  payment  in  full  of  the  Obligations  and  the        termination of this Agreement.         (e)  Obligations Absolute.  The obligation of the Borrower to reimburse the L/C Issuer for  each  drawing  under  each  Letter  of  Credit  and  to  repay  each  L/C  Borrowing  shall  be  absolute,  unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement  under all circumstances, including the following:               (i)   any lack of validity or enforceability of such Letter of Credit, this Agreement or        any other Loan Document;               (ii)  the existence of any claim, counterclaim, setoff, defense or other right that the        Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of        such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may        be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the        transactions  contemplated  hereby  or  by  such  Letter of Credit  or  any  agreement or instrument        relating thereto, or any unrelated transaction;               (iii) any draft, demand, certificate or other document presented under such Letter of        Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement        therein  being  untrue  or  inaccurate  in  any  respect;  or  any  loss  or  delay  in  the  transmission  or        otherwise of any document required in order to make a drawing under such Letter of Credit;               (iv)  any payment by the L/C Issuer under such Letter of Credit against presentation        of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or        any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a        trustee  in  bankruptcy,  debtor-in-possession,  assignee  for  the  benefit  of  creditors,  liquidator,        receiver or other representative of or successor to any beneficiary or any transferee of such Letter        of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;        or               (v)   any other circumstance or happening whatsoever, whether or not similar to any        of  the  foregoing,  including  any  other  circumstance  that  might  otherwise  constitute  a  defense        available to, or a discharge of, the Borrower or any Subsidiary.   The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is  delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other  irregularity,  the  Borrower  will  promptly  notify  the  L/C  Issuer.   The  Borrower  shall  be  conclusively  deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is  given as aforesaid.         (f)   Role of L/C Issuer.  Each Lender and the Borrower agree that, in paying any drawing  under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other  than any sight draft, certificates and documents expressly required by such Letter of  Credit) or to  ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person  executing or delivering any such document.  None of the L/C Issuer, the Administrative Agent, any of                                        34





 






 their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be  liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the  approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the  absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or  enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  The  Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect  to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall  not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or  transferee at law or under any other agreement.  None of the L/C Issuer, the Administrative Agent, any of  their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be  liable  or  responsible  for  any  of  the  matters  described  in  clauses  (i)  through  (v)  of  Section  2.03(e);  provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have  a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to  the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower  which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the  L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary  of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit  unless the L/C Issuer is prevented or prohibited from so paying as a result of any order or directive of any  court or other Governmental Authority.  In furtherance and not in limitation of the foregoing, the L/C  Issuer may accept documents that appear on their face to be in order, without responsibility for further  investigation,  regardless  of  any notice  or  information to  the  contrary,  and the L/C Issuer shall not be  responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to  transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in  part, which may prove to be invalid or ineffective for any reason.         (g)   Applicability of ISP and UCP.  Unless otherwise expressly agreed by the L/C Issuer and  the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing  Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of  the  Uniform  Customs  and  Practice  for  Documentary  Credits,  as  most  recently  published  by  the  International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of  Credit.         (h)   Letter  of  Credit  Fees.   The  Borrower  shall  pay  to  the  Administrative  Agent  for  the  account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the “Letter of  Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the daily maximum amount  available  to  be  drawn under such Letter  of  Credit;  provided, however, any  Letter  of  Credit Fees  otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which  such Defaulting Lender has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to this  Section 2.03 shall not be paid to such Defaulting Lender but shall be payable, to the maximum extent  permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in their  respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.15(a)(iv), with  the balance (unless the Borrower has provided Cash Collateral to the L/C Issuer in an amount sufficient   to  remove the L/C  Issuer’s Fronting  Exposure  in  respect of  such Defaulting Lender remaining  after   giving effect to Section 2.15(a)(iv) in which case no Letter of Credit Fee shall be payable in respect of  such amount sufficient to remove such Fronting Exposure) of such fee, if any, payable to the L/C Issuer  for its own account.  For purposes of computing the daily amount available to be drawn under any Letter   of  Credit, the  amount of  such Letter of Credit shall be determined in  accordance with Section  1.06.   Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the   first Business Day after the end of each March, June, September and December, commencing with the                                         35





 






 first such date to occur after the issuance of such Letter of Credit, on the Maturity Date and thereafter on  demand.  If there is any change in the Applicable Rate during any quarter, the daily amount available to  be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately  for each period during such quarter that such Applicable Rate was in effect.         (i)   Fronting  Fee  and  Documentary  and  Processing  Charges  Payable  to  L/C  Issuer.  The  Borrower  shall pay  directly  to the L/C  Issuer  for  its own  account  a fronting  fee  with  respect to each  Letter of Credit, at the rate per annum equal to 0.125%), computed on the actual daily maximum amount  available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect  under  such  Letter  of  Credit)  and  on  a  quarterly  basis  in  arrears.   Such  fronting  fee  shall  be  due  and  payable  on  the  tenth  Business  Day  after  the  end  of  each  March,  June,  September  and  December  in  respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment),  commencing with the first such date to occur after the issuance of such Letter of Credit, on the Maturity  Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under  any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section  1.06.  In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary  issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the  L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard  costs  and  charges  are  due  and  payable  by  the  Borrower  promptly  following  receipt  of  a  reasonably  detailed invoice therefor and are nonrefundable.         (j)   Conflict with Issuer Documents.  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.        (k)    Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit issued  or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the  Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such  Letter  of  Credit.   The  Borrower  hereby  acknowledges  that  the  issuance  of  Letters  of  Credit  for  the  account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives  substantial benefits from the businesses of such Subsidiaries.         (l)   Increases in Letter of Credit Sublimit and L/C Fronting Sublimit.               (i)   From time to time during the term of this Agreement, the Borrower may, upon        notice to the Administrative Agent (which shall promptly notify the L/C Issuers and the Lenders)        and subject to the terms and conditions of this Section 2.03(l), request that the L/C Issuers agree        to  (x) increase the Letter of Credit Sublimit by an amount  not to exceed $100,000,000 in the        aggregate (for all such requests) and (y) increase the L/C Fronting Sublimit of each L/C Issuer as        may  be  agreed  between  such  L/C  Issuer  and  the  Borrower;  provided  that  (i)  such  requested        increase in the amount of the Letter of Credit Sublimit shall be at least $5,000,000 and (ii) no        more than three such requests may be made during the term of this Agreement.               (ii)  At  the  time  of  sending  such  notice,  the  Borrower  (in  consultation  with  the        Administrative Agent) shall specify the time period within which each L/C Issuer is requested to        respond (which shall in no event be less than ten Business Days from the date of delivery of such        notice to  the L/C Issuers). Each L/C Issuer shall  notify the Administrative Agent within such        time period whether or not it agrees to increase the Letter of Credit Sublimit and its L/C Fronting        Sublimit.  Any  L/C  Issuer  not  responding  within  such  time  period  shall  be  deemed  to  have        declined to increase the Letter of Credit Sublimit and its L/C Fronting Sublimit.                                        36





 






            (iii) The Administrative Agent shall notify the Borrower, each L/C Issuer and each       other  Lender  of  the  responses  received  to  a  request  hereunder.  If  any  L/C  Issuer  agrees  to       increase the Letter of Credit Sublimit, then (x) each such agreeing L/C Issuer and the Borrower       shall  determine  any  increase  of  such  L/C  Issuer’s  L/C  Fronting  Sublimit  and  notify  the       Administrative  Agent  thereof  and  (y)  the  Borrower,  the  Administrative  Agent  and  each  such       agreeing  L/C  Issuer  shall  determine  the  effective  date  of  any  increase  of  the  Letter  of  Credit       Sublimit  or  such  L/C  Issuer’s  L/C  Fronting  Sublimit  (the  “Increase  Effective  Date”).  The       Administrative Agent shall promptly notify the Borrower, the L/C Issuers and the other Lenders       of such increases and of the Increase Effective Date.              (iv)  As  a  condition  precedent  to  any  Letter  of  Credit  Sublimit  increase  and  L/C       Fronting Sublimit increase hereunder, the Borrower shall deliver to the Administrative Agent a       certificate dated as of the Increase Effective Date signed by a Responsible Officer certifying that,       before and after giving effect to such increase, (A) the representations and warranties herein and       in  the  other  Loan  Documents  are  true  and  correct  in  all  material  respects  as  of  the  Increase       Effective  Date,  except  that  (i)  any  such  representation  and  warranty  that  is  qualified  by       materiality or a reference to Material Adverse Effect is true and correct in all respects on and as       of  the  date  of  such  increase  and  (ii)  to  the  extent  that  any  such  representation  and  warranty       specifically refers to an earlier date, each such representation and warranty is true and correct in       all material respects as of such earlier date (except that any such representation and warranty that       is  qualified  by  materiality  or  reference  to  Material  Adverse  Effect  is  true  and  correct  in  all       respects  as  of  such  earlier  date),  and  except  that  for  purposes  of  this  Section  2.03(l),  the       representations and warranties contained in Section 5.05 shall be deemed to refer to the most       recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.04 and (B)       no Default exists.        (m)   L/C  Issuer  Reports  to  the  Administrative  Agent.  Unless  otherwise  agreed  by  the Administrative Agent, each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this Section, provide the Administrative Agent a Letter of Credit Report, as set forth below:              (i)   reasonably  prior  to  the  time  that  such  L/C  Issuer  issues,  amends,  renews,       increases or extends a Letter of Credit, the date of such issuance, amendment, renewal, increase       or extension and the stated amount of the applicable Letters of Credit after giving effect to such       issuance,  amendment,  renewal  or  extension  (and  whether  the  amounts  thereof  shall  have       changed);              (ii)  on each Business Day on which such L/C Issuer makes a payment pursuant to a       Letter of Credit, the date and amount of such payment;              (iii) on any Business Day on which the Borrower fails to reimburse a payment made       pursuant to a Letter of Credit required to be reimbursed to such L/C Issuer on such day, the date       of such failure and the amount of such payment;              (iv)  on any other Business Day, such other information as the Administrative Agent       shall reasonably request as to the Letters of Credit issued by such L/C Issuer; and              (v)   for so long as any Letter of Credit issued by an L/C Issuer is outstanding, such       L/C  Issuer  shall  deliver  to  the  Administrative  Agent  (A)  on  the  last  Business  Day  of  each                                       37





 






       calendar  month,  (B)  at  all  other  times  a  Letter  of  Credit  Report  is  required  to  be  delivered        pursuant to this Agreement, and (C) on each date that (1) an L/C Credit Extension occurs or (2)        there is any expiration, cancellation and/or disbursement, in each case, with respect to any such        Letter of Credit, a Letter of Credit Report appropriately completed with the information for every        outstanding Letter of Credit issued by such L/C Issuer.   2.04 Swing Line Loans.         (a)  Swing Line Facility.  Subject to the terms and conditions set forth herein, the Swing Line   Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, agrees to   make loans (each such loan, a “Swing Line Loan”) to the Borrower in Dollars from time to time on any   Business Day during the Availability Period in  an  aggregate amount not  to exceed at any time   outstanding the amount of the Swing Line Sublimit; provided, however, that after giving effect to any   Swing Line Loan,  (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving   Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus   such Lender’s Applicable Percentage of  the Outstanding Amount of all L/C Obligations, plus such   Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed   such Lender’s Revolving Commitment, and provided, further, that the Borrower shall not  use the   proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing   limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section   2.04, prepay under Section 2.05, and reborrow under this Section 2.04.  Each Swing Line Loan shall be a   Base Rate Loan.  Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to,   and hereby irrevocably and  unconditionally agrees to,  purchase from the Swing Line Lender a risk   participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable   Percentage times the amount of such Swing Line Loan.         (b)   Borrowing Procedures.  Each Borrowing of Swing Line Loans shall be made upon the   Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be   given by (A) telephone or (B) by a Swing Line Loan Notice; provided that any telephonic notice must be   confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line   Loan Notice.  Each such Swing Line Loan Notice must be received by the Swing Line Lender and the  Administrative Agent not later than 2:00 p.m. on the requested borrowing date, and shall specify (i) the  amount to be borrowed, which shall be a minimum principal amount of $500,000 and integral multiples  of $100,000 in excess thereof, and (ii) the requested borrowing date, which shall be a Business Day.  Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender  will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent  has also received such Swing Line Loan Notice and,  if not,  the Swing Line Lender will  notify the   Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender   has received notice (by telephone or in writing) from the Administrative Agent (including at the request   of any Lender) prior to 3:00 p.m. on  the date of the proposed Borrowing of Swing Line Loans (A)  directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth  in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable  conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof,  the Swing Line Lender will, not later than 4:00 p.m. on the borrowing date specified in such Swing Line  Loan Notice, make the amount of its Swing Line Loan available to the Borrower either by (i) crediting  the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire  transfer of such funds, in each case in accordance with  instructions provided to (and reasonably  acceptable to) the Swing Line Lender by the Borrower.                                         38





 






 (c)  Refinancing of Swing Line Loans.        (i)    The Swing Line Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably requests and authorizes the Swing Line Lender to so request  on  its  behalf),  that  each  Lender  make  a  Base  Rate  Loan  in  an  amount  equal  to  such Lender’s  Applicable  Percentage  of  the  amount  of  Swing  Line  Loans  then  outstanding.   Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the  minimum  and  multiples  specified  therein  for  the  principal  amount  of  Base  Rate  Loans,  but  subject to the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice) and  provided that, after giving effect to such Borrowing, the Total Revolving Outstandings shall not  exceed  the  Aggregate  Revolving  Commitments.   The  Swing  Line  Lender  shall  furnish  the  Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the  Administrative Agent.  Each Lender shall make an amount equal to its Applicable Percentage of  the amount specified in such Loan Notice available to the Administrative Agent in immediately  available funds (and the Administrative Agent may apply Cash Collateral available with respect  to  the  applicable  Swing  Line  Loan)  for  the  account  of  the  Swing  Line  Lender  at  the  Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice,  whereupon,  subject  to Section  2.04(c)(ii),  each Lender that so makes funds available shall be  deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative  Agent shall remit the funds so received to the Swing Line Lender.         (ii)  If  for  any  reason  any  Swing  Line  Loan  cannot  be  refinanced  by  such  a  Borrowing of Revolving Loans in accordance with Section 2.04(c)(i), the request for Base Rate  Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by  the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing  Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing  Line  Lender  pursuant  to  Section  2.04(c)(i)  shall  be  deemed  payment  in  respect  of  such  participation.         (iii) If any Lender fails to make available to the Administrative Agent for the account  of  the  Swing  Line  Lender  any  amount  required  to  be  paid  by  such  Lender  pursuant  to  the  foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing  Line  Lender shall be entitled to recover from such Lender (acting through the Administrative  Agent), on demand, such amount with interest thereon for the period from the date such payment  is required to the date on which such payment is immediately available to the Swing Line Lender  at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the  Swing  Line  Lender  in accordance with banking industry rules on interbank compensation.  A  certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent)  with  respect  to  any amounts  owing under  this clause (iii) shall be conclusive absent manifest  error.         (iv)  Each Lender’s obligation to make Revolving Loans or to purchase and fund risk  participations  in  Swing  Line  Loans  pursuant  to  this  Section  2.04(c)  shall  be  absolute  and  unconditional  and  shall  not  be  affected  by  any  circumstance,  including  (A)  any  setoff,  counterclaim, recoupment, defense or other right that such Lender may have against the Swing  Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or  continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar  to  any  of  the  foregoing;  provided,  however,  that  each Lender’s obligation to make Revolving                                  39





 






      Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02.  No      such purchase or funding of risk participations shall relieve or otherwise impair the obligation of      the Borrower to repay Swing Line Loans, together with interest as provided herein.       (d)    Repayment of Participations.              (i)   At any time after any Lender has purchased and funded a risk participation in a       Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line       Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such       payment (appropriately adjusted, in the case of interest payments, to reflect the period of time       during which such Lender’s risk participation was funded) in the same funds as those received by       the Swing Line Lender.              (ii)  If  any  payment  received  by  the  Swing  Line  Lender  in  respect  of  principal  or       interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any       of the circumstances described in Section 10.05 (including pursuant to any settlement entered       into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender       its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon       from the date of such demand to the date such amount is returned, at a rate per annum equal to       the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of       the  Swing  Line  Lender.   The  obligations  of  the  Lenders  under  this  clause  shall  survive  the       payment in full of the Obligations and the termination of this Agreement.        (e)  Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each Lender funds its Revolving Loans  that  are  Base  Rate  Loans  or  risk  participation  pursuant  to  this  Section  2.04  to  refinance  such Lender’s  Applicable  Percentage  of  any  Swing  Line  Loan,  interest  in  respect  of  such  Applicable Percentage shall be solely for the account of the Swing Line Lender.        (f)   Payments  Directly  to  Swing  Line  Lender.   The  Borrower  shall  make  all  payments  of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.  2.05 Prepayments.        (a)  Voluntary Prepayments.              (i)   Revolving  Loans.   The  Borrower  may,  upon  notice  from  the  Borrower  to  the       Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans, in       whole or in part without premium or penalty; provided that (A) such notice must be in a form       reasonably acceptable to the Administrative Agent and be received by the Administrative Agent       not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar       Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any such prepayment of       Eurodollar  Rate  Loans  shall  be  in  a  principal  amount  of  $2,000,000  or  a  whole  multiple  of       $1,000,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding);       and (C) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a       whole multiple of $500,000 in excess thereof (or, if less, the entire principal amount thereof then       outstanding).  Each such notice shall specify the date and amount of such prepayment and the       Type(s) of Loans to be prepaid.  The Administrative Agent will promptly notify each Lender of       its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such                                       40





 






 prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment  and the payment amount specified in such notice shall be due and payable on the date specified  therein.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest  on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.15, each such prepayment shall be applied to the Loans of the Lenders in  accordance with their respective Applicable Percentages.  Each notice delivered by the Borrower  pursuant  to  this  Section  2.05(a)(i)  shall  be  irrevocable; provided  that  a  notice  of  prepayment  delivered  by  the  Borrower  may  state  that  such  notice  is  conditioned  on  the  occurrence  of  a  refinancing of all or any portion of the Loans or the occurrence of any other event which would  have provided the cash proceeds for such prepayment, in which case such notice may be revoked  by the Borrower (by notice to the Administrative Agent on or prior to the specified closing date  of such refinancing or other such event) if such condition is not satisfied.         (ii)  Swing Line Loans.  The Borrower may, upon notice to the Swing Line Lender  (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay  Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice  must be received by the Swing Line Lender and the Administrative Agent not later than 1:00  p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal  amount  of  $500,000 or a  whole  multiple  of  $100,000  in excess  thereof  (or,  if  less,  the entire  principal thereof then outstanding).  Each such notice shall specify the date and amount of such  prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment  and the payment amount specified in such notice shall be due and payable on the date specified  therein.   (b)   Mandatory Prepayments of Loans.         (i)   Revolving Commitments.  If for any reason the Total Revolving Outstandings at  any  time  exceed  the  Aggregate  Revolving  Commitments  then  in  effect,  the  Borrower  shall  promptly,  and  in  any  event  within  one  (1)  Business  Day,  prepay Revolving  Loans and/or the  Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to  such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the  L/C  Obligations  pursuant  to  this  Section  2.05(b)(i)  unless  after  the  prepayment  in  full  of  the  Revolving  Loans  and  the  Swing  Line  Loans  the  Total  Revolving  Outstandings  exceed  the  Aggregate Revolving Commitments then in effect.         (ii) Application of Mandatory Prepayments.  All amounts required to be paid pursuant  to this Section 2.05(b) shall be applied ratably to Revolving Loans and Swing Line Loans and (after all  Revolving  Loans  and  Swing  Line  Loans  have  been  repaid)  to  Cash  Collateralize  L/C Obligations.  Within the parameters of the applications set forth above, prepayments shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest Period maturities.  All prepayments  under  this  Section  2.05(b)  shall  be  subject  to  Section  3.05,  but  otherwise  without  premium  or  penalty,  and  shall  be  accompanied  by  interest  on  the  principal  amount  prepaid  through the date of prepayment.                                    41





 






 2.06 Termination or Reduction of Aggregate Revolving Commitments.         (a)  Optional Reductions.  The Borrower may, upon  notice to the Administrative Agent,   terminate the Aggregate Revolving Commitments, or  from time to time permanently reduce the   Aggregate Revolving Commitments to an amount not less than the Outstanding Amount of Revolving   Loans, Swing Line Loans and L/C Obligations; provided that (i) any such notice shall be received by the   Administrative Agent not later than 12:00 noon three (3) Business Days prior to the date of termination   or reduction, (ii) any such partial reduction shall be in an aggregate amount of $2,000,000 or any whole   multiple of $1,000,000  in excess thereof and  (iii) the Borrower shall not terminate or reduce (A) the   Aggregate Revolving Commitments if, after giving effect thereto and  to any concurrent prepayments   hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, (B)   the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations   not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swing  Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the  Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit. Each notice delivered  by the Borrower pursuant to  this Section 2.06(a) shall be irrevocable; provided that a  notice of  termination of the Aggregate Revolving Commitments delivered by the Borrower may state that such  notice is conditioned upon the effectiveness of other credit facilities (including, without limitation, credit  facilities evidenced by a credit agreement or an indenture), in which case such notice may be revoked by  the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such  condition is  not satisfied.  Any termination or reduction of  the Aggregate Revolving Commitments  pursuant to this Section 2.06 shall be  permanent.  Each reduction of  the Aggregate Revolving  Commitments pursuant to this Section 2.06 shall be made to the Revolving Commitments of the Lenders  in accordance with their Applicable Percentage.        (b)    Mandatory Reductions.  If after giving effect to any reduction or termination of  Revolving Commitments under this Section 2.06, the Letter of  Credit Sublimit or the Swing Line  Sublimit exceed the Aggregate Revolving Commitments at such time, the Letter of Credit Sublimit or the  Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.        (c)   Notice.  The Administrative Agent will promptly notify the Lenders of any termination  or reduction of the Letter of  Credit Sublimit, Swing Line Sublimit or the Aggregate Revolving  Commitments under this Section 2.06.  Upon any reduction of the Aggregate Revolving Commitments,  the Revolving Commitment of each Lender shall be reduced by such Lender’s Applicable Percentage of  such reduction amount.  All fees in respect of the Aggregate Revolving Commitments accrued until the  effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective  date of such termination.  2.07  Repayment of Loans.        (a)   Revolving Loans.  The Borrower shall  repay to the Lenders on the Maturity Date the  aggregate principal amount of all Revolving Loans outstanding on such date.        (b)    Swing Line Loans.  The Borrower shall repay each Swing Line Loan on the earliest to  occur of (i) the date within one (1) Business Day of demand therefor by the Swing Line Lender, (ii) the  date that is ten (10) Business Days after the date such Swing Line Loan is made and (iii) the Maturity  Date.                                         42





 






2.08 Interest.        (a)  Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of the Eurodollar Rate for such Interest Period plus the Applicable Rate, (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.        (b)   (i)  If  any  amount  hereunder  is  not  paid  when  due  (after  giving  effect  to  any       applicable  grace  periods),  whether  at  stated  maturity,  by  acceleration  or  otherwise,  then  such       amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to       the Default Rate to the fullest extent permitted by applicable Laws.              (ii)  Accrued and unpaid interest on past due amounts (including interest on past due       interest) shall be due and payable upon demand.        (c)  Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable  in  accordance  with  the  terms  hereof  before  and  after  judgment,  and  before  and  after  the commencement of any proceeding under any Debtor Relief Law.  2.09 Fees.        In addition to certain fees described in subsections (h) and (i) of Section 2.03:              (a)  Facility  Fee.   The  Borrower  shall  pay  to  the  Administrative  Agent,  for  the       account of each Lender in accordance with its Applicable Percentage, a facility fee (the “Facility       Fee”) at a rate per annum equal to the product of (i) the Applicable Rate times (ii) the actual      daily  amount  of  the  Aggregate  Revolving  Commitments  (or,  if  the  Aggregate  Revolving      Commitments have terminated, on the Outstanding Amount of all Loans and L/C Obligations),      regardless of  usage, subject  to  adjustment  as  provided in Section 2.15. The Facility Fee shall       accrue at all times during the Availability Period, including at any time during which one or more       of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the       last Business Day of each March, June, September and December, commencing with the first       such  date  to  occur  after  the  Second  Amendment  and  Restatement  Effective  Date,  and  on  the       Maturity Date; provided, that (A) no Facility Fee shall accrue on the Revolving Commitment of a       Defaulting Lender so long as such Lender shall be a Defaulting Lender and (B) any Facility Fee       accrued  with  respect  to the  Revolving  Commitment  of a  Defaulting Lender  during  the period       prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be       payable by the Borrower so long as such Lender shall be a Defaulting Lender.  The Facility Fee       shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during       any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate       separately for each period during such quarter that such Applicable Rate was in effect.                                         43





 






             (b)   Fee  Letter.   The  Borrower  shall  pay  to  the  Joint  Lead  Arrangers  and  the        Administrative  Agent  for  their  own  respective  accounts  fees  in  the  amounts  and  at  the  times        specified in the Facilities Fee Letter.  Such fees shall be fully earned when paid and shall be non-        refundable for any reason whatsoever.   2.10 Computation of Interest and Fees.         All  computations  of  interest  for  Base  Rate  Loans  (including  Base  Rate  Loans  determined  by  reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may  be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a  360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid  than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which  the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan  or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall,  subject to Section 2.12(a), bear interest for one day.  Each determination by the Administrative Agent of  an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.   2.11 Evidence of Debt.         (a)  The Credit Extensions made by each Lender shall be evidenced by one or more accounts  or  records  maintained  by  such  Lender  and  by  the  Administrative  Agent  in  the  ordinary  course  of  business.  The accounts or records maintained by the Administrative Agent and each Lender shall be  conclusive  absent  manifest  error  of  the  amount  of  the  Credit  Extensions  made  by  the  Lenders  to the  Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall  not,  however,  limit  or  otherwise  affect  the  obligation  of  the  Borrower  hereunder  to  pay  any  amount  owing with respect to the Obligations.  In the event of any conflict between the accounts and records  maintained by any Lender and the accounts and records of the Administrative Agent in respect of such  matters, the accounts and records of the Administrative Agent shall control in the absence of manifest  error.   Upon  the  request  of  any  Lender  made  through  the  Administrative  Agent,  the  Borrower  shall  execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall  evidence such Lender’s Loans in addition to such accounts or records.  Each such promissory note shall  (i) in the case of Revolving Loans, be in the form of Exhibit C (a “Revolving Note”) and (ii) in the case  of  Swing  Line  Loans,  be  in  the  form  of  Exhibit  D  (a  “Swing  Line  Note”).  Each  Lender  may  attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.  Promptly following the written request to a Lender by the Borrower upon  the  termination  of  this  Agreement,  such Lender  shall  use commercially reasonable efforts to (i) return to the Borrower each Note issued to it, or (ii) in the case of any loss, theft or destruction of any such Note, a customary lost note affidavit in form and substance reasonably satisfactory to the Borrower.        (b)    In addition to the accounts and records referred to in subsection (a), each Lender and the  Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing  the obligations of such Lender in respect of participations in Letters of Credit and Swing Line Loans.  In   the event of any conflict between the accounts and records maintained by the Administrative Agent and   the accounts and records of  any Lender in respect of such matters, the accounts and records of  the Administrative Agent shall control in the absence of manifest error.                                          44





 






2.12 Payments Generally; Administrative Agent’s Clawback.        (a)  General.  All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein,  all  payments  by  the  Borrower  hereunder  shall  be  made  to  the  Administrative  Agent,  for  the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Administrative  Agent  will  promptly  distribute  to  each  Lender  its  Applicable  Percentage  (or  other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  Subject to the definition of “Interest Period”, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.        (b)   (i)   Funding  by  Lenders;  Presumption  by  Administrative  Agent.   Unless  the       Administrative Agent shall have received notice from a Lender prior to the proposed date of any       Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior       to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the       Administrative  Agent  such  Lender’s  share  of  such  Borrowing,  the  Administrative  Agent  may       assume that such Lender has made such share available on such date in accordance with Section       2.02 (or, in the case of any Borrowing of Base Rate Loans, that such Lender has made such share       available in accordance with and at the time required by Section 2.02) and may, in reliance upon       such assumption, make available to the Borrower a corresponding amount.  In such event, if a       Lender has not in fact made its share of the applicable Borrowing available to the Administrative       Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative       Agent  forthwith  on  demand  such  corresponding  amount  in  immediately  available  funds  with       interest thereon, for each day from and including the date such amount is made available to the       Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of       a  payment  to  be  made  by  such  Lender,  the  greater  of  the  Federal  Funds  Rate  and  a  rate       determined by the Administrative Agent in accordance with banking industry rules on interbank       compensation and (B) in the case of a payment  to be made by the Borrower, the interest rate       applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the       Administrative  Agent  for  the  same  or  an  overlapping  period,  the  Administrative  Agent  shall       promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.       If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the       amount so paid shall constitute such Lender’s Loan included in such Borrowing.  Any payment       by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender       that shall have failed to make such payment to the Administrative Agent.              (ii)  Payments  by  Borrower;  Presumptions  by  Administrative  Agent.   Unless  the       Administrative Agent shall have received notice from the Borrower prior to the date on which       any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer       hereunder that the Borrower will not make such payment, the Administrative Agent may assume       that  the  Borrower  has  made  such  payment  on  such  date  in  accordance  herewith  and  may,  in       reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be,       the amount due.  In such event, if the Borrower has not in fact made such payment, then each of       the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative       Agent  forthwith  on  demand  the  amount  so  distributed  to  such  Lender  or  the  L/C  Issuer,  in                                       45





 






      immediately available funds with interest thereon, for each day from and including the date such       amount is distributed to it to but excluding the date of payment to the Administrative Agent, at       the  greater  of  the  Federal  Funds  Rate  and  a  rate  determined  by  the  Administrative  Agent  in       accordance with banking industry rules on interbank compensation.              A notice of the Administrative Agent to any Lender or the Borrower with respect to any       amount owing under this subsection (b) shall be conclusive, absent manifest error.        (c)  Failure  to  Satisfy  Conditions  Precedent.   If  any  Lender  makes  available  to  the Administrative  Agent  funds  for  any  Loan  to  be  made  by  such  Lender  as  provided  in  the  foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.        (d)   Obligations  of  Lenders  Several.   The  obligations  of  the  Lenders  hereunder  to  make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).        (e)  Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.  2.13 Sharing of Payments by Lenders.        If  any  Lender  shall,  by  exercising  any  right  of  setoff  or  counterclaim  or  otherwise,  obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it (excluding any amounts applied by the Swing Line Lender to outstanding Swing Line Loans) resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the  Administrative  Agent  of  such  fact,  and  (b)  purchase  (for  cash  at face  value)  participations  in  the Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:              (i)   if  any  such  participations  or  subparticipations  are  purchased  and  all  or  any       portion of the payment giving rise thereto is recovered, such participations or subparticipations       shall be rescinded and the purchase price restored to the extent of such recovery, without interest;       and             (ii) the provisions of this Section shall not be construed to apply to (x) any payment       made by or on behalf of the Borrower pursuant to and in accordance with the express terms of       this  Agreement  (including  the  application  of  funds arising  from  the existence  of a Defaulting       Lender), (y) the application of Cash Collateral provided for in Section 2.14 or (z) any payment                                       46





 






       obtained by a Lender as consideration for the assignment of or sale of a participation in any of its        Loans  or  subparticipations  in  L/C  Obligations  or  Swing  Line  Loans  to  any  assignee  or        participant, other than an assignment to the Borrower or any Subsidiary thereof (as to which the        provisions of this Section shall apply).         The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under  applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may  exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully  as if such Lender were a direct creditor of the Borrower in the amount of such participation.   2.14 Cash Collateral.        (a)   Certain Credit Support Events.  Upon the request of the Administrative Agent or the L/C  Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and  such drawing has resulted in an L/C Borrowing or (ii) if, as of the Letter of Credit Expiration Date, any  L/C  Obligation  for  any  reason  remains  outstanding,  the  Borrower  shall,  in  each  case,  promptly  Cash  Collateralize the then Outstanding Amount of all L/C Obligations.  At any time that there shall exist a  Defaulting Lender, promptly upon the request of the Administrative Agent, the L/C Issuer or the Swing  Line  Lender,  the  Borrower  shall  deliver  to  the  Administrative  Agent  Cash  Collateral  in  an  amount  sufficient  to  cover  all  Fronting  Exposure  (after  giving  effect  to  Section  2.15(a)(iv)  and  any  Cash  Collateral provided by the Defaulting Lender).         (b)   Grant of Security Interest.  All Cash Collateral (other than credit support not constituting  funds  subject  to  deposit)  shall  be  maintained  in  blocked,  non-interest  bearing  deposit accounts  at  the  Administrative Agent.  The Borrower, and to the extent provided by any Lender, such Lender, hereby  grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative  Agent, the L/C Issuer and the Lenders (including the Swing Line Lender) and agrees to maintain, a first  priority security interest in all such cash, deposit accounts and all balances therein, and all other property  so  provided  as collateral  pursuant  hereto, and  in  all proceeds of the  foregoing,  all  as  security  for  the  obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c).  If at any time the  Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other  than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less  than the applicable Fronting Exposure and other obligations secured thereby, the Borrower will, promptly  upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash  Collateral in an amount sufficient to eliminate such deficiency.         (c)  Application.   Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement,  Cash  Collateral  provided  under  any  of  this  Section  2.14  or  Sections  2.03,  2.04,  2.05,  2.15  or  8.02  in respect of Letters of Credit or Swing Line Loans shall be held and applied in satisfaction of the specific L/C  Obligations,  Swing  Line  Loans,  obligations  to  fund  participations  therein  (including,  as  to  Cash Collateral  provided  by  a  Defaulting  Lender,  any  interest  accrued  on  such  obligation)  and  other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided herein.        (d)    Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting  Exposure or other obligations shall be released promptly following (i) the elimination of the applicable  Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting  Lender status of the applicable Lender) or (ii) the good faith determination of the Administrative Agent  and the L/C Issuer (which determination shall not be unreasonably withheld or delayed) that there exists                                        47





 






 excess Cash Collateral (including following the Borrower’s request); provided, however, (x) that Cash  Collateral furnished by or on behalf of the Borrower shall not be released during the continuance of a  Default or Event of Default (and following application as provided in this Section 2.14 may be otherwise  applied in accordance with Section 8.03) and (y) the Person providing Cash Collateral and the L/C Issuer  or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but instead held  to support future anticipated Fronting Exposure or other obligations.   2.15 Defaulting Lenders.         (a)  Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:               (i)   Waivers  and  Amendment.   The  Defaulting  Lender’s  right  to  approve  or        disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted        as set forth in Section 10.01.               (ii)  Reallocation  of  Payments.   Any  payment  of  principal,  interest,  fees  or  other        amount received by the Administrative Agent for the account of that Defaulting Lender (whether        voluntary  or  mandatory,  at  maturity,  pursuant  to  Article  VIII  or  otherwise,  and  including  any        amounts  made  available  to  the  Administrative  Agent  by  that  Defaulting  Lender  pursuant  to        Section  10.08),  shall  be  applied  at  such  time  or  times  as  may  be  determined  by  the        Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting        Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any        amounts owing by that Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder;        third, if so determined by the Administrative Agent or requested by the L/C Issuer or Swing Line        Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of        any  participation  in  any  Swing  Line  Loan  or  Letter  of  Credit;  fourth,  as  the  Borrower  may        request (so long as no Default or Event of Default exists), to the funding of any Loan in respect        of  which  that  Defaulting  Lender  has  failed  to  fund  its  portion  thereof  as  required  by  this        Agreement,  as  determined  by  the  Administrative  Agent;  fifth,  if  so  determined  by  the        Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and        released  in  order  to  satisfy  obligations  of  that  Defaulting  Lender  to  fund  Loans  under  this        Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing        Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any        Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender as a result of that        Defaulting  Lender’s  breach  of  its  obligations  under  this  Agreement;  seventh,  so  long  as  no        Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a        result of any judgment of a court of competent jurisdiction obtained by the Borrower against that        Defaulting  Lender  as  a  result  of  that  Defaulting  Lender’s  breach  of  its  obligations  under  this        Agreement;  and  eighth,  to  that  Defaulting  Lender  or  as  otherwise  directed  by  a  court  of        competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount        of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded        its  appropriate  share  and  (y)  such  Loans  or  L/C  Borrowings  were  made  at  a  time  when  the        conditions  set  forth  in  Section  4.02  were  satisfied  or  waived,  such  payment  shall  be  applied        solely to the pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro        rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that        Defaulting  Lender.   Any  payments,  prepayments  or  other  amounts  paid  or  payable  to  a        Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to                                        48





 






       post Cash Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by        that Defaulting Lender, and each Lender irrevocably consents hereto.               (iii) Certain Fees.                     (A)  Each Defaulting Lender shall be entitled to receive Facility Fees for any              period during which such Lender is a Defaulting Lender only to the extent allocable to              the sum of (1) the outstanding principal amount of the Loans funded by it and (2) its              Applicable Percentage of the stated amount of Letters of Credit for which it has provided              Cash Collateral pursuant to Section 2.14.                     (B)   Each Defaulting Lender shall be entitled to receive Letter of Credit Fees              for  any  period  during  which  that  Lender  is  a  Defaulting  Lender  only  to  the  extent              allocable to its Applicable Percentage of the stated amount of Letters of Credit for which              it has provided Cash Collateral pursuant to Section 2.14.                     (C)   With  respect  to  any  Facility  Fee  or  any  Letter  of  Credit  Fee,  in  each              case,  not  required  to  be  paid  to  any  Defaulting  Lender  pursuant  to  clause  (A)  or  (B)              above, the Borrower shall (x) pay to any non-Defaulting Lender that portion of any such              fee  otherwise  payable  to  such  Defaulting  Lender  with  respect  to  such  Defaulting              Lender’s participation in Swing Line Loans or L/C Obligations that has been reallocated              to such non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the L/C Issuer              and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to              such  Defaulting  Lender  to  the  extent  allocable  to  the  L/C  Issuer’s  or the  Swing  Line              Lender’s Fronting Exposure to such Defaulting Lender and (z) not be required to pay the              remaining amount of any such fee.               (iv)  Reallocation of Applicable Percentages to Reduce Fronting Exposure.  During        any period in which there is a Defaulting Lender, for purposes of computing the amount of the        obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters        of Credit or Swing Line Loans pursuant to Sections 2.03 and 2.04, the “Applicable Percentage”       of each non-Defaulting Lender shall be computed without giving effect to the Commitment of       that Defaulting Lender; provided, that, (x) each such reallocation shall be given effect only if, at        the date the applicable Lender becomes a Defaulting Lender, (I) no Default or Event of Default        exists and (II) the condition set forth in Section 4.02(a) is satisfied at such time (and, unless the        Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall        be deemed to have represented and warranted that such condition is satisfied at such time); and        (y) the  aggregate  obligation  of  each  non-Defaulting  Lender  to  acquire,  refinance  or  fund        participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference,        if  any,  of  (1)  the  Commitment  of  that  non-Defaulting  Lender  minus  (2)  the  aggregate        Outstanding Amount of the Revolving Loans of that Lender.         (b)   Defaulting Lender Cure.  If the Borrower, the Administrative Agent, Swing Line Lender  and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should no longer be   deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon   as of the effective date specified in such notice and subject to any conditions set forth therein (which may   include arrangements with respect to  any Cash Collateral), that Lender will, to  the extent applicable,  purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the  Administrative Agent may determine to be necessary to cause the Revolving Loans  and  funded and                                        49





 






 unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.15(a)(iv)),  whereupon that Lender will cease to be a Defaulting Lender; provided, that, no adjustments will be made  retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that  Lender was a Defaulting Lender; provided, further, that, except to the extent otherwise expressly agreed  by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or  release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.   2.16 Certain Permitted Amendments.         (a)  The  Borrower  may,  by  written  notice  to  the  Administrative  Agent  from  time  to  time  beginning on the date that is 18 months after the Second Amendment and Restatement Effective Date,  but not more than three times during the term of this Agreement (and with no more than one such offer  outstanding at any one time), make one or more offers (each, a “Loan Modification Offer”) to all the  Lenders to make one or more Permitted Amendments pursuant to procedures reasonably specified by the  Administrative Agent and reasonably acceptable to the Borrower.  Such notice shall set forth (i) the terms  and  conditions  of  the  requested  Permitted  Amendment  and  (ii)  the  date  on  which  such  Permitted  Amendment is requested to become effective.  Notwithstanding anything to the contrary in Section 10.01,  each Permitted Amendment shall only require the consent of the Borrower, the Administrative Agent and  those  Lenders  that  accept  the  applicable  Loan  Modification  Offer  (such  Lenders,  the  “Accepting  Lenders”), and each Permitted Amendment shall become effective only with respect to the Loans and  Commitments of the Accepting Lenders.  In connection with any Loan Modification Offer, the Borrower  may, at its sole option, with respect to one or more of the Lenders that are not Accepting Lenders (each, a  “Non-Accepting  Lender”)  replace  such  Non-Accepting  Lender  pursuant  to  Section  10.13.   Upon  the  effectiveness  of  any  Permitted  Amendment  and  any  assignment  of  any  Non-Accepting  Lender’s  Commitments  pursuant  to  Section  10.13,  subject  to  the  payment  of  applicable  amounts  pursuant  to  Section 3.05 in connection therewith, the Borrower shall be deemed to have made such borrowings and  repayments of the Loans, and the Lenders shall make such adjustments of outstanding Loans between  and  among them,  as  shall  be necessary  to effect the reallocation of the Commitments such that, after  giving effect thereto, the Loans shall be held by the Lenders (including the Eligible Assignees as the new  Lenders) ratably in accordance with their Commitments.         (b)   The Borrower and each Accepting Lender shall execute and deliver to the Administrative  Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall  reasonably  specify  to  evidence  the  acceptance  of  the  Permitted  Amendments  and  the  terms  and  conditions thereof.  The Administrative Agent shall promptly notify each Lender as to the effectiveness  of  each  Loan  Modification  Agreement.   Each  of  the  parties  hereto  hereby  agrees  that,  upon  the  effectiveness  of  any  Loan  Modification  Agreement,  this  Agreement  shall  be  deemed  amended  to  the  extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment  evidenced  thereby  and  only  with  respect  to  the  Loans  and  Commitments  of  the  Accepting  Lenders,  including any amendments necessary to treat the applicable Loans and/or Commitments of the Accepting  Lenders as a new “Class” or “Tranche” of loans and/or commitments hereunder.  Notwithstanding the  foregoing,  no  Permitted  Amendment  shall  become  effective  unless  the  Administrative  Agent,  to  the  extent  reasonably  requested  by  the  Administrative  Agent,  shall  have  received  legal  opinions,  board  resolutions, officer’s and secretary’s certificates and other documentation consistent with those delivered  on the Second Amendment and Restatement Effective Date under this Agreement.         (c)  “Permitted  Amendments”  means  any  or  all  of  the  following:  (i)  an  extension  of  the  Maturity  Date  applicable  solely  to  the  Loans  and/or  Commitments  of  the  Accepting  Lenders,  (ii)  an                                        50





 






 increase in the interest rate with respect to the Loans and/or Commitments of the Accepting Lenders, (iii)   the inclusion of additional fees to be payable to the Accepting Lenders in connection with the Permitted   Amendment (including any commitment fees and upfront fees), (iv) such amendments to this Agreement   and the other Loan Documents as shall be appropriate, in the reasonable judgment of the Administrative   Agent, to provide the rights and benefits of this Agreement and  other Loan  Documents to  each new  “Class” or  “Tranche” of  loans and/or commitments resulting therefrom, provided that payments of  principal and interest on Loans (including Loans of Accepting Lenders) shall continue to be shared pro  rata in accordance with  Section 2.13, except that notwithstanding Section 2.13 the Loans  and  Commitments of the Non-Accepting Lenders may be repaid and terminated on their applicable Maturity  Date, without any pro rata reduction of the commitments and repayment of Loans of Accepting Lenders  with a different Maturity Date and (v) such other amendments to  this Agreement and the other Loan  Documents as  shall be appropriate, in the reasonable judgment of the Administrative Agent, to  give  effect to the foregoing Permitted Amendments.        (d)    This Section  2.16  shall  supersede any  provision in Section  10.01  to  the  contrary.  Notwithstanding  any  reallocation into extending and non-extending  “Classes”  or  “Tranches”  in  connection with a Permitted Amendment, all Loans to the  Borrower under  this  Agreement shall  rank  pari-passu in right of payment.                                     ARTICLE III                      TAXES, YIELD PROTECTION AND ILLEGALITY  3.01  Taxes.        (a)   Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.  (i)  Any and all payments by or on account of any obligation of the Borrower hereunder or under any other  Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without  reduction or withholding for any Taxes.  If, however, applicable Laws require the Borrower or the   Administrative Agent to  withhold or deduct any Tax, such Tax shall be  withheld or  deducted in   accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case may   be, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.         (ii)  If the Borrower or the Administrative Agent shall be required by the Internal Revenue   Code to  withhold or deduct any Taxes, including both United States Federal backup withholding and   withholding Taxes, from any payment, then (A) the Administrative Agent shall withhold or make such   deductions as are determined by the Administrative Agent to be required based upon the information and   documentation it has  received pursuant to subsection (e) below,  (B) the Administrative Agent shall   timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance   with the Internal Revenue Code, and (C) to the extent that the withholding or deduction is made on   account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be increased as   necessary so that after any required withholding or the making of all required deductions (including   deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender or   L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such   withholding or deduction been made.         (b)   Payment of Other Taxes by the Borrower.  Without limiting the provisions of subsection   (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in   accordance with applicable Law.                                        51





 






       (c)  Tax Indemnifications.  (i) Without limiting the provisions of subsection (a) or (b) above, the  Borrower  shall,  and  does  hereby,  indemnify  the  Administrative  Agent,  each  Lender  and  the  L/C Issuer,  and  shall  make  payment  in  respect  thereof  within  10  days  after  demand  therefor,  for  the  full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or  asserted  on  or  attributable  to  amounts  payable  under  this  Section)  withheld  or  deducted  by  the Borrower or the Administrative Agent paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto,  whether  or  not  such  Indemnified  Taxes  or  Other  Taxes  were  correctly  or legally  imposed or asserted by the relevant Governmental Authority; provided, however, that such indemnity shall not, as to  any indemnitee, be available to the extent that the imposition of such Taxes is determined by a court of  competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence  or  willful  misconduct  of  such  indemnitee.   The  Borrower  shall  also,  and  does  hereby,  indemnify  the  Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor,  for  any  amount  which  a  Lender  or  the  L/C  Issuer  for  any  reason  fails  to  pay  indefeasibly  to  the  Administrative Agent as required by clause (ii) of this subsection.  A certificate as to the amount of any  such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the  Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the  L/C Issuer, shall be conclusive absent manifest error.         (ii)  Without limiting the provisions of subsection (a) or (b) above, each Lender and the L/C  Issuer  shall,  and does  hereby, indemnify  the  Borrower  and  the  Administrative  Agent, and  shall  make  payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any and  all  related  losses,  claims,  liabilities,  penalties,  interest  and  expenses  (including  the  fees,  charges  and  disbursements  of  any  counsel  for  the  Borrower  or  the  Administrative  Agent)  incurred  by  or  asserted  against  the  Borrower  or  the  Administrative  Agent  by  any  Governmental  Authority  as  a  result  of  the  failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy,  inadequacy  or  deficiency  of,  any  documentation  required  to  be  delivered  by  such  Lender  or  the  L/C  Issuer, as the case may be, to the Borrower or the Administrative Agent pursuant to subsection (e).  Each  Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all  amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or  any other Loan Document against any amount due to the Administrative Agent under this clause (ii).  The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative  Agent, any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of  the  Aggregate  Revolving  Commitments  and  the  repayment,  satisfaction  or  discharge  of  all  other  Obligations.         (d)   Evidence of Payments.  Upon request by the Borrower or the Administrative Agent, as  the  case  may  be,  after  any  payment  of  Taxes  by  the  Borrower  or  by  the  Administrative  Agent  to  a  Governmental  Authority  as  provided  in  this  Section  3.01,  the  Borrower  shall  deliver  to  the  Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the  original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment,  a  copy  of  any  return  required  by  Laws  to  report  such  payment  or  other  evidence  of  such  payment  reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.         (e)  Status of Lenders; Tax Documentation.  (i) Each Lender shall deliver to the Borrower  and to the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably   requested by the Borrower or  the Administrative Agent, such properly completed and  executed   documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such                                        52





 






other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case  may  be,  to  determine  (A)  whether  or  not  payments  made  hereunder  or  under  any  other  Loan Documents are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.        (ii)  Without  limiting  the  generality  of  the  foregoing,  if  the  Borrower  is  resident  for  tax purposes in the United States,              (A)  any  Lender  that  is  a  “United  States  person”  within  the  meaning  of  Section       7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower and the Administrative       Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or       information  prescribed  by  applicable  Laws  or  reasonably  requested  by  the  Borrower  or  the       Administrative  Agent  certifying  that  such  Lender  is  exempt  from  U.S.  federal  backup       withholding;              (B)   each  Foreign  Lender  that  is  entitled  under  the  Internal  Revenue  Code  or  any       applicable treaty to an exemption from or reduction of withholding Tax with respect to payments       hereunder  or  under  any  other  Loan  Document  shall  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 request of the Borrower or the Administrative Agent, but       only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:              (I)   executed  originals  of  Internal  Revenue  Service  Form  W-8BEN  or  Form  W-       8BEN-E,  as  applicable,  claiming  eligibility  for  benefits  of  an  income  tax  treaty  to  which  the       United States is a party,              (II)  executed originals of Internal Revenue Service Form W-8ECI,              (III) executed originals of Internal Revenue Service Form W-8IMY and all required       supporting documentation,              (IV)  in  the  case  of  a  Foreign  Lender  claiming  the  benefits  of  the  exemption  for       portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect       that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the       Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of       section  881(c)(3)(B)  of  the  Internal  Revenue  Code,  or  (C)  a  “controlled  foreign  corporation”       described in section 881(c)(3)(C) of the Internal Revenue Code and (y) executed originals of       Internal Revenue Service Form W-8BEN or Form W-8BEN-E, as applicable, or              (V)   executed originals of any other form prescribed by applicable Laws as a basis for       claiming  exemption  from  or  a  reduction  in  United  States  Federal  withholding  Tax  duly       completed together with such supplementary documentation as may be prescribed by applicable       law  to  permit  the  Borrower  or  the  Administrative  Agent  to  determine  the  withholding  or       deduction required to be made; and              (C)   if a payment made to a Lender under any Loan Document would be subject to                                       53





 






      U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the       applicable reporting requirements of FATCA (including those contained in Section 1471(b) or       1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower       and the Administrative Agent at the time or times prescribed by law and at such time or times       reasonably  requested  by  the  Borrower  or  the  Administrative  Agent  such  documentation       prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal       Revenue Code) and such additional documentation reasonably requested by the Borrower or the       Administrative  Agent  as  may be  necessary  for  the  Borrower  and the  Administrative  Agent  to       comply with their obligations under FATCA and to determine that such Lender has complied       with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold       from such payment.  Solely for purposes of this Section 3.01(e)(ii)(C), “FATCA” shall include       any amendments made to FATCA after the date of this Agreement.        (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any change  in  circumstances  which  would  modify  or  render  invalid  any  claimed  Tax  exemption  or  Tax reduction,  and  (B)  take  such  steps  as  shall  not  be  materially  disadvantageous  to  it,  in  the  reasonable judgment  of  such  Lender,  and  as  may  be  reasonably  necessary  (including  the  re-designation  of  its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative  Agent  make  any  withholding  or  deduction  for  Taxes  from  amounts  payable  to  such Lender.        (iv) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section  3.01  expires  or  becomes  obsolete  or  inaccurate  in  any  respect,  it  shall  update  such  form  or certification  or  promptly  notify  the  Borrower  and  the  Administrative  Agent  in  writing  of  its  legal inability to do so.        (f)   Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes  giving  rise  to  such  refund),  net  of  all  reasonable  out-of-pocket  expenses  incurred  by  the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the  amount  paid  over  to  the  Borrower  (plus  any  penalties,  interest  or  other  charges  imposed  by  the relevant  Governmental  Authority)  to  the  Administrative  Agent,  such  Lender  or  the  L/C  Issuer  in  the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer to make available its Tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.        (g)   FATCA.  For purposes of determining withholding taxes imposed under FATCA, from and after the Second Amendment and Restatement Effective Date, the Borrower and the Administrative  Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Agreement as                                       54





 






 not qualifying as a  “grandfathered obligation” within the  meaning  of  Treasury  Regulation Section   1.1471-2(b)(2)(i).   3.02 Illegality.         If any Lender determines that any Law has made it unlawful, or that any Governmental Authority   has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund   Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest   rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions  on  the authority of  such Lender to purchase or sell, or to  take deposits of,  Dollars in  the London   interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative   Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base   Rate Loans to Eurodollar Rate Loans shall be suspended and (ii) if such notice asserts the illegality of   such Lender making or maintaining Base Rate Loans  the interest rate on  which is  determined by   reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans   of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent   without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender   notifies the Administrative Agent and the Borrower that the circumstances giving rise to such   determination no longer exist.  Upon receipt of such notice, (x) the Borrower shall, upon demand from   such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar   Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such   Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without   reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period   therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or   immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if   such notice asserts the illegality of such Lender determining or charging interest rates based upon the   Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base   Rate applicable to such Lender without reference to  the Eurodollar Rate component thereof until the   Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to   determine or  charge interest rates based upon the Eurodollar Rate.  Upon  any such prepayment or   conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.   3.03 Inability to Determine Rates.         If the Required Lenders and/or other than in the case of clause (c) below, the Administrative   Agent determine that for any reason in connection with  any request for a Eurodollar Rate Loan or a   conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in  the   London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar   Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Base Rate for   any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an   existing or proposed Base Rate Loan, or (c) the Eurodollar Base Rate for any requested Interest Period   with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to the   Lenders of funding such Loan, the Administrative Agent will promptly notify the Borrower and all   Lenders.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall   be suspended and (y) in the event of a determination described in the preceding sentence with respect to   the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in   determining the Base Rate shall be suspended, in each case until the Administrative Agent revokes such   notice.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing,                                         55





 






 conversion or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted  such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.   3.04 Increased Costs.         (a)  Increased Costs Generally.  If any Change in Law shall:               (i)   impose,  modify  or  deem  applicable  any  reserve,  special  deposit,  compulsory        loan, insurance charge or similar requirement against assets of, deposits with or for the account        of, or credit extended or participated in by, any Lender (except any reserve requirement reflected        in the Eurodollar Rate) or the L/C Issuer;               (ii)  subject any Lender or the L/C Issuer to any Tax of any kind whatsoever with        respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any        Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lender or        the  L/C  Issuer  in  respect  thereof  (except  in  each  case  for  Indemnified  Taxes  or  Other  Taxes        covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax        payable by such Lender or the L/C Issuer); or               (iii) impose  on  any  Lender  or  the  L/C  Issuer  or  the  London interbank  market any        other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such        Lender or any Letter of Credit or participation therein;         and the result of any of the foregoing shall be to increase the cost to such Lender of making or        maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or        of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or        the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining        its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any        sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal,        interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower        will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts        as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs        incurred or reduction suffered.         (b)   Capital Requirements.  If any Lender or the L/C Issuer determines that any Change in  Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or   the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have   the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of   such Lender’s or the L/C  Issuer’s holding company, if any, as a consequence of this Agreement, the  Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such  Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the  L/C  Issuer or such Lender’s or the L/C  Issuer’s holding company could have achieved but for such  Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of  such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy and liquidity), then  from time to  time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such  additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the  L/C Issuer’s holding company for any such reduction suffered.                                         56





 






       (c)  Certificates for Reimbursement.  A certificate of a Lender or the L/C Issuer setting forth  in reasonable detail the amount or amounts necessary to compensate such Lender or the L/C Issuer or its  holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to  the Borrower shall be conclusive absent manifest error; provided, however, that notwithstanding anything  to the contrary contained in this Section 3.04, in the case of any Change in Law, it shall be a condition to  a  Lender’s  exercise  of  its  rights,  if  any,  under  this  Section  3.04  that  such  Lender  shall  generally  be exercising  similar  rights  with  respect  to  borrowers  under  similar  agreements  where  available.   The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 15 days after receipt thereof.        (d)    Delay  in  Requests.   Failure  or  delay  on  the  part  of  any  Lender  or  the  L/C  Issuer  to  demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of  such Lender’s or the L/C Issuer’s right to demand such compensation, provided that the Borrower shall  not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this  Section for any increased costs incurred or reductions suffered more than six months prior to the date that  such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise  to  such  increased  costs  or  reductions  and  of  such  Lender’s  or  the  L/C  Issuer’s  intention  to  claim  compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions  is  retroactive,  then  the  six-month  period  referred  to  above  shall  be  extended to include  the  period  of  retroactive effect thereof).   3.05 Compensation for Losses.         Upon demand (which demand shall set forth the basis for compensation and a reasonable detailed  calculation of such compensation) of any Lender (with a copy to the Administrative Agent) from time to  time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any  loss, cost or expense incurred by it as a result of:               (a)  any continuation, conversion, payment or prepayment of any Loan other than a        Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether        voluntary, mandatory, automatic, by reason of acceleration, or otherwise);               (b)   any failure by the Borrower (for a reason other than the failure of such Lender to        make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on        the date or in the amount notified by the Borrower; or               (c)  any assignment of a Eurodollar Rate Loan on a day other than the last day of the        Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;   excluding any loss of anticipated profits, but including any loss or expense arising from the liquidation or   reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the  deposits from which such funds were obtained.  The Borrower shall also pay any customary administrative  fees charged by such Lender in connection with the foregoing.        For purposes of calculating amounts payable by the Borrower to the Lenders under this Section  3.05, each Lender shall be  deemed to  have funded each Eurodollar Rate Loan made by it at  the  Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or  other borrowing in the London  interbank eurodollar market for a  comparable amount and for a  comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.                                        57





 






 3.06 Mitigation Obligations; Replacement of Lenders.         (a)  Designation of a Different Lending Office.  If any Lender requests compensation under  Section 3.04, or the Borrower is required to pay any additional amount to any Lender, the L/C Issuer or  any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section 3.01, or  if  any  Lender  gives  a  notice  pursuant  to  Section  3.02,  then  such  Lender  or  the  L/C  Issuer  shall,  as  applicable,  use  reasonable  efforts  to  designate  a  different  Lending  Office  for  funding  or  booking  its  Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or  affiliates, if, in the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would  eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future,  or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would  not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and  would  not  otherwise  be  disadvantageous  to  such  Lender  or  the  L/C Issuer,  as the case  may be.   The  Borrower  hereby  agrees  to  pay  all  reasonable  costs  and  expenses  incurred  by  any  Lender  or  the L/C  Issuer in connection with any such designation or assignment.         (b)   Replacement of Lenders.  If (i) any Lender requests compensation under Section 3.04,  (ii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority  for the account of any Lender pursuant to Section 3.01 or (iii) any Lender delivers a notice pursuant to  Section 3.02, the Borrower may replace such Lender in accordance with Section 10.13.   3.07 Survival.         All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Revolving  Commitments,  repayment  of  all  other  Obligations  hereunder  and  resignation  of  the Administrative Agent.                                    ARTICLE IV                    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  4.01  Conditions to Effectiveness.         This second amendment and restatement to the Existing Credit Agreement shall become effective  upon satisfaction of the following conditions precedent:               (a)  Loan Documents.  Receipt by the Administrative Agent of executed counterparts       of  this  Agreement  and  the  other  Loan  Documents,  each  properly  executed  by  a  Responsible       Officer of the Borrower and, in the case of this Agreement, by each Lender.              (b)    Opinions of Counsel. Receipt by the Administrative Agent of favorable opinions        of legal counsel to the Borrower, addressed to the Administrative Agent and each Lender, dated        as  of  the  Second  Amendment  and  Restatement  Effective  Date,  and  in  form  and  substance        reasonably satisfactory to the Administrative Agent.               (c)  [Reserved].               (d)   [Reserved].                                        58





 






      (e)  Organization Documents, Resolutions, Etc.  Receipt by the Administrative Agent of the following, each of which shall be originals or facsimiles (followed promptly by originals), in form and substance satisfactory to the Administrative Agent and its legal counsel:              (i)   copies  of  the  Organization  Documents  of  the  Borrower  certified to be       true and complete as of a recent date by the appropriate Governmental Authority of the       state  or  other  jurisdiction  of  its  incorporation  or  organization,  where  applicable,  and       certified by a secretary or assistant secretary of the Borrower to be true and correct as of the       Second Amendment and Restatement Effective Date;              (ii)  such certificates of resolutions or other action, incumbency certificates       and/or other certificates of Responsible Officers of the Borrower as the Administrative       Agent may require evidencing the identity, authority and capacity of each Responsible       Officer  thereof  authorized  to  act  as  a  Responsible  Officer  in  connection  with  this       Agreement and the other Loan Documents to which the Borrower is a party; and              (iii) such  documents  and  certifications  as  the  Administrative  Agent  may       require  to  evidence  that  the  Borrower  is  duly  organized  or  formed,  and  is  validly       existing, in good standing and qualified to engage in business in its state of organization       or formation.        (f)  Closing Certificate.  Receipt by the Administrative Agent of a certificate signed by  a  Responsible  Officer  of  the  Borrower  certifying  (i)(A)  that  there  has  not  occurred  since December 31, 2016 any event or condition that has had or could reasonably be expected, either individually  or  in  the  aggregate,  to  cause  a  material  adverse  change in, or  a  material adverse effect  on,  the  financial  condition,  results  of  operations  or  business  of  the  Borrower  and  its Subsidiaries, taken as a whole, other than as disclosed in the Borrower’s (x) quarterly reports on Form 10-Q for its fiscal quarters ending on March 31, 2017 and June 30, 2017 and (y) current reports on Form 8-K, as filed with the SEC prior to the Second Amendment and Restatement Effective Date and (B) there does not exist any action, suit, investigation or proceeding pending or to the Borrower’s knowledge, threatened in any court or before an arbitrator or Governmental Authority  that  could  reasonably  be  expected  to  have  a  Material  Adverse  Effect,  (ii)  that  the conditions specified in Sections 4.02(a) and (b) (each as though a Credit Extension were being made on the Second Amendment and Restatement Effective Date) have been satisfied and (iii) the current Debt Ratings.        (g)   [Reserved]        (h)   Fees.  Receipt by the Administrative Agent, the Joint Lead Arrangers and the Lenders of any fees required to be paid on or before the Second Amendment and Restatement Effective Date, including all facility fees, letter of credit fees and fronting fees accrued under the Existing Credit Agreement prior to the Second Amendment and Restatement Effective Date.        (i)   KYC Information.  Receipt by the Administrative Agent and the Lenders of all documentation and other information requested by the Administrative Agent and the Lenders that is  required  to  satisfy  applicable  “know  your  customer”  and  anti-money  laundering  rules  and regulations,  including  the  USA  PATRIOT  Act  and,  to  the  extent  applicable,  the  Beneficial Ownership Regulation.                                 59





 






             (j)   Attorney Costs.  Unless waived by the Administrative Agent, the Borrower shall        have  paid  all  reasonable  and  documented  out-of-pocket  fees,  charges  and  disbursements  of        counsel to the Administrative Agent to the extent invoiced at least  three (3) days prior to the        Second Amendment and Restatement Effective Date, plus such additional amounts of such fees,        charges and disbursements as shall constitute its reasonable estimate of such fees, charges and        disbursements  incurred  or to be  incurred  by it through the closing proceedings (provided that        such estimate shall not thereafter preclude a final settling of accounts between the Borrower and        the Administrative Agent).               (k)   Other.   Receipt  by  the  Administrative  Agent  and  the  Lenders  of  such  other        documents,  instruments,  agreements  and  information  as  reasonably  requested  by  the        Administrative  Agent  or  any  Lender,  including,  but  not  limited  to,  information  regarding        litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate        leases,  material  contracts,  debt  agreements,  property  ownership,  environmental  matters,        contingent liabilities and management of the Borrower and its Subsidiaries.         Without  limiting  the  generality  of  the  provisions  of  the  last  paragraph  of  Section  9.03,  for  purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior  to  the  proposed  Second  Amendment  and  Restatement  Effective  Date  specifying  its  objection thereto.  The Administrative Agent shall notify the Borrower and the Lenders of the occurrence of the Second Amendment and Restatement Effective Date, and such notice shall be conclusive and binding.  4.02  Conditions to all Credit Extensions.         The  obligation  of  each  Lender  to  honor  any  Request  for  Credit  Extension  (but  not  any  continuation or conversion of a Loan) is subject to the following conditions precedent:               (a)  The  representations  and warranties  of  the  Borrower contained in Article V or        any other Loan Document, or which are contained in any document furnished at any time under        or in connection herewith or therewith, shall be true and correct in all material respects on and as        of the date of such Credit Extension, except that (x) any such representation and warranty that is        qualified by materiality or a reference to Material Adverse Effect shall be true and correct in all        respects  on  and  as  of  the  date  of  such  Credit  Extension  and  (y)  to  the  extent  that  any  such        representation and warranty specifically refers to an earlier date, each such representation and        warranty shall be true and correct in all material respects as of such earlier date (except that any        such representation and warranty that is qualified by materiality or reference to Material Adverse        Effect  shall  be  true  and  correct  in  all  respects  as  of  such  earlier  date),  and  except  that  for        purposes of this Section 4.02, the representations and warranties contained in Section 5.05 shall        be  deemed  to  refer  to  the  most  recent  statements  furnished  pursuant  to  clauses  (a)  and  (b),        respectively, of Section 6.04.               (b)   No Default or Event of Default shall exist, or would result from such proposed        Credit Extension or from the application of the proceeds thereof.                                         60





 






             (c)  The  Administrative  Agent  and, if applicable, the  L/C  Issuer and/or the Swing        Line  Lender  shall  have  received  a  Request  for  Credit  Extension  in  accordance  with  the        requirements hereof.         Each Request for Credit Extension (other than any continuation or conversion of  a Loan)  submitted by the Borrower shall be deemed to be a representation and warranty that the conditions  specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit  Extension.                                     ARTICLE V                         REPRESENTATIONS AND WARRANTIES        The Borrower represents and warrants to the Administrative Agent, the L/C Issuer and each of  the Lenders, on the Second Amendment and Restatement Effective Date and each other date required by  Section 4.02(a), that:  5.01  Organization; Powers.        (a)   The Borrower (i) is duly organized, validly existing and in good standing under the laws  of the jurisdiction of its organization, (ii) has all requisite power and authority to (x) own its property and  assets and to carry on its business as now conducted and (y) execute, deliver and perform its obligations  under the Loan Documents to which it is a party and (iii) is qualified to do business in, and is in good  standing in, every jurisdiction where such qualification is required, except, in the case of clause (iii),  where the failure to do so could not reasonably be expected to result in a Material Adverse Effect.        (b)    Each  of the Subsidiaries (i) is duly organized, validly existing and in good standing  under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to own its  property and assets and to carry on its business as now conducted and (iii) is qualified to do business in,  and is in good standing in, every jurisdiction where such qualification is required, except in the case of  any of the foregoing clauses (i), (ii) and (iii) where the failure to do so could not reasonably be expected  to result in a Material Adverse Effect.  5.02  Authorization.        The execution, delivery and performance by the Borrower of this Agreement and the transactions  contemplated hereby (including the Borrowings hereunder) (collectively, the “Transactions”) (a) are  within the Borrower’s corporate powers and have been duly authorized by all requisite corporate and, if  required, stockholder action and  (b) will not  (i) violate (A) any provision of  law, statute, rule or  regulation, or of the Organization Documents of the Borrower or any Subsidiary, (B) any order of any  Governmental Authority or (C) any provision of any indenture, agreement or other instrument to which  the Borrower or any Subsidiary is a party or by which any of them or any of their property is or may be  bound, the effect of which could reasonably be expected to result in a Material Adverse Effect, (ii) result  in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to  any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under  any such indenture, agreement or other instrument, the effect of which could reasonably be expected to  result in a Material Adverse Effect, or (iii) result in the creation or imposition of any Lien (other than  Liens permitted by Section 7.02) upon or with respect to any property or assets now owned or hereafter  acquired by the Borrower or any Subsidiary.                                        61





 






 5.03 Enforceability.         This Agreement has been duly executed and delivered by the Borrower and constitutes a legal,   valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its   terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting   the enforceability of creditors’ rights generally and to general principles of equity, regardless of whether   considered in a proceeding in equity or at law.   5.04 Governmental Approvals.        No  action, consent or approval of, registration or filing with or any other action by any   Governmental Authority is or will be required in connection with the Transactions, except for such as   have been made or obtained and are in full force and effect or those which the failure to obtain could not   reasonably be expected to result in a Material Adverse Effect.   5.05 Financial Statements.         The Borrower has heretofore furnished to the Lenders its consolidated balance sheets and related   statements of income, stockholders’ equity and  cash flows (a) as of and for the fiscal year ended  December 31,  2016,  audited by and  accompanied by the opinion of PricewaterhouseCoopers LLP,  independent public accountants, and (b) as of and for the fiscal quarter and the portion of the fiscal year  ended June 30, 2017, certified by its chief financial officer.  Such financial statements present fairly, in  all material respects, the financial condition and results of operations and cash flows of the Borrower and  its consolidated Subsidiaries as of such dates and for such periods referred to therein in accordance with  GAAP,  subject to normal year-end audit adjustments and the absence of footnotes in the case of the  statements referred to in clause (b) above.  5.06  No Material Adverse Change.        As of the Second Amendment and Restatement Effective Date, since December 31, 2016, there  has been no material adverse change in the financial condition, results of operations or business of the  Borrower and the Subsidiaries, taken as a whole, other than as disclosed in the Borrower’s (i) quarterly  reports on Form 10-Q for its fiscal quarters ending on March 31, 2017 and June 30, 2017 and (ii) current  reports on Form 8-K, as filed with the SEC prior to the Second Amendment and Restatement Effective  Date.  5.07  [Reserved].  5.08  Litigation; Compliance with Laws.        (a)   There are not any actions, suits or proceedings at law or in equity, or by or before any  Governmental Authority now  pending or, to the knowledge of the Borrower, threatened against or  affecting the Borrower or any Subsidiary or any business, property or rights of any such Person (i) that  purport to affect the legality, validity or enforceability of this Agreement or the consummation of the  Transactions or (ii) that could reasonably be expected, individually or in the aggregate, to result in a  Material Adverse Effect.                                         62





 






       (b)   None of the Borrower or any of  the Subsidiaries is in  violation of  any law, rule or  regulation, or is  in default with respect to any judgment, writ, injunction, decree or  order of  any   Governmental Authority, where such violation or default could  reasonably be expected to result in a   Material Adverse Effect.   5.09 Federal Reserve Regulations.         (a)  The  Borrower  is not engaged principally, or  as one  of  its important  activities, in the   business of extending credit for the purpose of buying or carrying Margin Stock.         (b)   No part of the proceeds of any Loan or any Letter of Credit will be used, whether   directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry Margin   Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or for any   purpose that entails a violation of, or that is inconsistent with, the provisions of Regulations T, U or X of   the FRB.   5.10 Investment Company Act.         The Borrower is not an “investment company” as defined in, or subject to regulation under, the   Investment Company Act of 1940.   5.11 Use of Proceeds.         The Borrower will use the proceeds of the Credit Extensions solely for general corporate   purposes of the Borrower and its Subsidiaries, including (a) working capital, (b) capital expenditures, (c)  (i) the funding of share repurchases andShare Repurchases and (ii) other Restricted Payments permitted   hereunder, (d) acquisitions and other investments and (e) the repayment of all amounts outstanding or   due under the Existing Credit Agreement; provided that during the Compliance Leverage Ratio Period,   the proceeds of the Loans may be used to fund Share Repurchases solely to the extent permitted pursuant   to, and subject to the terms and conditions of, Section 7.05(b).   5.12 Tax Returns.         Each of the Borrower and the Subsidiaries has filed or caused to be filed all federal, state, local   and foreign Tax returns or materials required to have been filed by it and has paid or caused to be paid all   Taxes due and payable by it and all assessments received by it, except (a) Taxes that are being contested   in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable,   shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b)   to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse   Effect.   5.13 No Material Misstatements.         None  of (a) the Confidential Information Memorandum or (b) any other information, report,   financial statement, exhibit or schedule furnished by or on behalf of the Borrower to the Administrative   Agent or any Lender in connection with the negotiation of this Agreement (other than any information of   a general economic or industry nature) contains, when furnished, any material misstatement of fact or   omits to state any material fact necessary to make the statements therein taken as a whole, in the light of   the circumstances under which they were made, not materially misleading; provided that to the extent                                        63





 






 any such information, report, financial statement, exhibit or schedule was based upon or constitutes a   forecast or projection, the Borrower represents only that it acted in good faith and utilized reasonable   assumptions at the time prepared and at the time furnished to the Administrative Agent or any Lender   and due care in the preparation of such information, report, financial statement, exhibit or schedule (it   being understood that projections as to future events are not to be viewed as facts or guaranties of future   performance, that actual results during the period or periods covered by such projections may differ from   the projected results and that such differences may be material and that no assurances are being given   that such projections will be in fact realized).   5.14 Employee Benefit Plans.         (a)  No  ERISA Event has occurred or  is reasonably expected to  occur that, when taken   together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse   Effect.         (b)   As of the Second Amendment and Restatement Effective Date, the Borrower is not and  will not be (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to   Section 4975 of the Internal Revenue Code, (3) an entity deemed to hold “plan assets” of any such plans   or accounts for purposes of ERISA or the Internal Revenue Code, or (4) a “governmental plan” within  the meaning of ERISA.  5.15  Environmental Matters.        Except with respect to any matters that, individually or in the aggregate, could not reasonably be  expected to result in a Material Adverse Effect, neither the Borrower nor any of the Subsidiaries (a) has  failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license  or other approval required under any Environmental Law, (b) is subject to any Environmental Liability, (c) has received written notice of any claim with respect to any Environmental Liability or (d) knows of  any basis for any Environmental Liability of the Borrower or the Subsidiaries.  5.16  Senior Indebtedness.        The Loans and other  obligations hereunder  constitute  “Senior  Indebtedness”  under  and as  defined in the Subordinated Note Documents.  5.17  No Default.        No Default has occurred and is continuing.  5.18  OFAC.        Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower and its  Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or  entity currently the subject of any Sanctions, nor is the Borrower or any Subsidiary located, organized or  resident in a Designated Jurisdiction.                                          64





 






 5.19 Anti-Corruption Laws and Sanctions.        The Borrower and its Subsidiaries have conducted their businesses in compliance in all material respects with applicable anti-corruption laws and Sanctions and have instituted and maintained policies and procedures reasonably designed to promote and achieve compliance with such laws.  5.20  EEA Financial Institutions.         The Borrower is not an EEA Financial Institution.                                    ARTICLE VI                              AFFIRMATIVE COVENANTS        So  long as any Lender shall have any Commitment hereunder, any Loan  or other Obligation   hereunder shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which   no claim has been asserted), or any Letter of Credit shall remain outstanding (other than any Letter of   Credit for which the Borrower has provided Cash Collateral in accordance with the terms hereof), the   Borrower shall and shall cause each Subsidiary to:   6.01 Existence; Businesses and Properties; Compliance with Laws.         (a)  Do or cause to be done all things necessary to preserve, renew and keep in full force and   effect its legal existence, except as otherwise permitted under Section 7.03.         (b)   Preserve, renew and maintain in full force and effect its good standing under the laws of   the jurisdiction of its organization, except to the extent the failure to  do  so  could not  reasonably be   expected to have a Material Adverse Effect.         (c)  Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep   in full force and effect its rights, licenses, permits, franchises, authorizations, patents, copyrights,   trademarks and trade names, and  comply in  all material respects with  all applicable laws, rules,   regulations and decrees and orders of any Governmental Authority, in each case except where the failure   to do so could not reasonably be expected to result in a Material Adverse Effect.   6.02 Insurance.         Maintain with responsible and reputable insurance companies insurance, to such extent and   against such risks as is customary with companies in the same or similar businesses operating in the same   or similar locations.   6.03 Obligations and Taxes.         Pay its Indebtedness and other obligations, including Taxes, before the same shall become   delinquent or in default, except where (a) the validity or amount thereof shall be contested in good faith   by appropriate proceedings and the Borrower shall have set aside on its books adequate reserves with   respect thereto in accordance with GAAP or (b) to  the extent that the failure to do  so  could not  reasonably be expected to result in a Material Adverse Effect.                                         65





 






 6.04 Financial Statements, Reports, etc.  In the case of the Borrower, furnish to the Administrative  Agent:         (a)  within  105  days  after  the  end  of  each  fiscal  year,  its  consolidated  balance  sheet  and  related statements of income, stockholders’ equity and cash flows as of the close of and for such fiscal  year,  together  with  comparative  figures  for  the  immediately  preceding  fiscal  year,  all  audited  by  PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing  and accompanied by an opinion of such accountants (which shall not be qualified in any material respect)  to the effect that such consolidated financial statements present fairly in all material respects the financial  condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated  basis in accordance with GAAP consistently applied;         (b)   within 50 days after the end of each of the first three fiscal quarters of each fiscal year,  its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows as of  the close of and for such fiscal quarter and the then elapsed portion of the fiscal year, and comparative  figures  for  the  same  periods  in  the  immediately  preceding  fiscal  year,  all  certified  by  one  of  its  Responsible Officers as presenting fairly in all material respects the financial condition and results of  operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with  GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;         (c)  concurrently with any delivery of financial statements under paragraph (a) or (b) above,  a Compliance Certificate executed by a Responsible Officer of the Borrower (i) certifying that no Event  of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the  nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii)  setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating  compliance with the covenant contained in Section 7.05(a) and (iii) stating whether any material change  in GAAP or in the application thereof has occurred since the date of the audited financial statements  referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on  the financial statements accompanying such certificate;         (d)   promptly  after  the  same  become  publicly  available,  copies  of  all  periodic  and  other  reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or  with any national securities exchange, or distributed to its shareholders generally, as the case may be;         (e)  [reserved];         (f)   promptly, from time to time, such other information regarding the operations, business  affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this  Agreement, as the Administrative Agent or any Lender may reasonably request;        (g)    promptly, following a request by any Lender, all documentation and other information   that such Lender reasonably requests in order to comply with its ongoing obligations under applicable   “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT   Act and the Beneficial Ownership Regulation.   Documents required to be delivered pursuant to this Section 6.04 (to the extent any such documents are   included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered,   shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or   provides a link thereto on  the Borrower’s website on  the Internet at the website address listed on                                        66





 






 Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or  intranet  website,  if  any,  to  which  each  Lender  and  the  Administrative  Agent  have  access  (whether  a  commercial, third-party website or whether sponsored by the Administrative Agent); provided, that: (i)  the Borrower shall deliver paper copies of such documents required to be delivered pursuant to Section  6.04(a) and (b) to the Administrative Agent or any Lender upon its request to the Borrower to deliver  such paper copies until a written request to cease delivering paper copies is given by the Administrative  Agent  or  such  Lender  and  (ii)  the  Borrower  shall  notify  the  Administrative  Agent  (by  telecopier  or  electronic  mail)  of  the  posting  of  any  such  documents  required  to  be  delivered  pursuant  to  Section  6.04(a)  and  (b).   The  Administrative  Agent  shall  have  no  obligation  to  request  the  delivery  of  or  to  maintain paper copies of the documents referred to above, and in any event shall have no responsibility to  monitor compliance by the Borrower with any such request for delivery by a Lender, and each Lender  shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.   The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers  will make available to the Lenders and the L/C Issuer materials and/or information provided by or on  behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on  DebtDomain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”)  and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive  material non-public information with respect to any of the Borrower or its Affiliates, or the respective  securities  of  any  of  the  foregoing,  and  who  may  be  engaged  in  investment  and  other  market-related  activities with respect to such Persons’ securities.  The Borrower hereby agrees that upon the written  request of the Administrative Agent (w) all Borrower Materials that are to be made available to Public  Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the  word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials  “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead  Arrangers,  the  L/C  Issuer  and  the  Lenders  to  treat  such  Borrower  Materials  as  not  containing  any  material  non-public  information  with  respect  to  the  Borrower  or  its  securities  for purposes  of  United  States Federal and state securities laws (provided, however, that to the extent such Borrower Materials  constitute Information,  they shall  be treated  as  set forth in Section 10.07); (y) all Borrower Materials  marked  “PUBLIC”  are  permitted  to  be  made  available  through  a  portion  of  the  Platform  designated  “Public  Side  Information;”  and  (z) the  Administrative  Agent  and  the  Joint  Lead  Arrangers  shall  be  entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting  on a portion of the Platform not designated “Public Side Information.”   6.05 Litigation and Other Notices.  In the case of the Borrower, furnish to the Administrative Agent  prompt written notice of the following after actual knowledge thereof by any Responsible Officer of the  Borrower:         (a)  any  Event  of  Default  or  Default,  specifying  the  nature  and  extent  thereof  and  the  corrective action (if any) taken or proposed to be taken with respect thereto;         (b)   the filing or commencement of, or any written threat or notice of intention of any Person  to  file  or  commence,  any  action,  suit  or proceeding,  whether  at  law  or  in  equity  or  by or before any  Governmental  Authority,  against  the  Borrower  or  any  Subsidiary  thereof  that  could  reasonably  be  expected to result in a Material Adverse Effect;         (c)  any change in the rating by S&P or Moody’s of the Index Debt; and                                         67





 






       (d)   the occurrence of any ERISA Event that, alone or together with any other ERISA Events  that have occurred, could reasonably be expected to result in a Material Adverse Effect.  6.06  Maintaining Records; Access to Properties and Inspections.        Keep books of  record and account in  all material respects in  conformity with GAAP and all   requirements of law in relation to its business and activities.  The Borrower will, and will cause each of   its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender,   upon reasonable prior notice, to visit and inspect the financial records and the properties of the Borrower   or any Subsidiary at reasonable times and as often as reasonably requested and to make extracts from and   copies of such financial records, and permit any representatives designated by the Administrative Agent   or any Lender to discuss the affairs, finances and condition of the Borrower or any Subsidiary with the   officers thereof and independent accountants therefor; provided that, unless a Default or Event of Default   has occurred and is continuing, the costs and  expenses of such a visitation or inspection shall be the   responsibility of the inspecting party or parties.  Notwithstanding the foregoing or any other provision of   this Agreement, in no  event will the Borrower or its Subsidiaries be required to disclose to  the   Administrative Agent or any Lender privileged documents or other documents the disclosure of which   would violate regulatory or contractual confidentiality obligations binding upon the Borrower or any of   its Subsidiaries.   6.07 Use of Proceeds.         Use the proceeds of the Credit Extensions only for the purposes set forth in Section 5.11.  6.08  Anti-Corruption Laws and Sanctions.        Maintain policies and procedures reasonably designed to promote and achieve compliance by the  Borrower and its Subsidiaries with applicable anti-corruption laws and Sanctions.                                    ARTICLE VII                               NEGATIVE COVENANTS         So  long as any Lender shall have any Commitment hereunder, any Loan  or other Obligation   hereunder shall remain unpaid or unsatisfied (other than any contingent indemnification obligations for   which no claim has been asserted), or any Letter of Credit shall remain outstanding (other than any Letter   of Credit for which the Borrower has provided Cash Collateral in accordance with the terms hereof), the   Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:   7.01 Subsidiary Indebtedness.  With respect to the Subsidiaries, incur, create, issue, assume or permit   to exist any Indebtedness or preferred stock, except:         (a)  Indebtedness or  preferred stock existing on  the Second Amendment and Restatement   Effective Date and having a  principal amount (or, in the case of preferred stock, a  liquidation   preference), in each case less than $25,000,000 and, in the case of any such Indebtedness, any extensions,   renewals or replacements thereof to the extent the principal amount of such Indebtedness is  not  increased, and such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms  no less favorable to the Lenders, and the original obligors in respect of such Indebtedness remain the  only obligors thereon;                                        68





 






       (b)   Indebtedness created or existing hereunder;         (c)  intercompany  Indebtedness  or  preferred  stock  to  the  extent  owing  to  or  held  by  the  Borrower or another Subsidiary;         (d)   Indebtedness  of  any  Subsidiary  incurred  to  finance  the  acquisition,  construction  or  improvement  of  any  fixed  or  capital  assets,  and  extensions,  renewals  and  replacements  of  any  such  Indebtedness  that  do  not  increase  the  outstanding  principal  amount  thereof;  provided  that  (i)  such Indebtedness is  incurred  prior to or  within  180  days after  such  acquisition  or  the completion  of  such construction  or  improvement  and  (ii)  the  aggregate  principal  amount  of  Indebtedness  at  any  time outstanding permitted by this Section 7.01(d), when combined with the aggregate principal amount of all  Capital Lease Obligations incurred pursuant to Section 7.01(e) and then outstanding and all Indebtedness  incurred  pursuant  to  Section  7.01(f)  and  then  outstanding,  shall  not  exceed  the  greater  of  (x)  $750,000,000 and (y) 15% of Consolidated Net Worth;         (e)  Capital  Lease  Obligations  in  an  aggregate  principal  amount  at  any  time  outstanding,  when  combined with  the  aggregate principal amount  of  all  Indebtedness  incurred  pursuant  to Section  7.01(d) and then outstanding and Section 7.01(f) and then outstanding, not to exceed the greater of (x) $750,000,000 and (y) 15% of Consolidated Net Worth;        (f)    Indebtedness of any Person that becomes a Subsidiary after the Second Amendment and Restatement Effective Date; provided that (i) such Indebtedness exists at the time such Person becomes a  Subsidiary  and  is  not  created  in  contemplation  of  or  in  connection  with  such  Person  becoming  a  Subsidiary, (ii) immediately before and after such Person becomes a Subsidiary, no Event of Default or  Default shall have occurred and be continuing and (iii) the aggregate principal amount of Indebtedness at  any time outstanding permitted by this clause (f), when combined with the aggregate principal amount of  all  Indebtedness  incurred  pursuant  to  Section  7.01(d)  and  then  outstanding  and  all  Capital  Lease  Obligations incurred pursuant to Section 7.01(e) and then outstanding, shall not exceed the greater of (x)  $750,000,000 and (y) 15% of Consolidated Net Worth;         (g)   Indebtedness under performance bonds or with respect to workers’ compensation claims,  in each case incurred in the ordinary course of business; and         (h)   additional  Indebtedness  (including  attributable  Indebtedness  in  respect  of  Sale  and  Leaseback Transactions) or preferred stock of the Subsidiaries to the extent not otherwise permitted by  the foregoing clauses of this Section 7.01 in an aggregate principal amount at any time outstanding (or, in  the  case  of  preferred  stock,  with  an  aggregate  liquidation  preference),  when  combined  (without  duplication)  with  the  amount  of  obligations  of  the  Borrower  and  its  Subsidiaries  secured  by  Liens  pursuant to Section 7.02(l) and then outstanding, not to exceed the greater of (x) $750,000,000 and (y)  15% of Consolidated Net Worth.   7.02 Liens.  Create, incur, assume or permit to exist any Lien on any property or assets (including  Equity  Interests  or  other  securities  of  any  Person,  including  any  Subsidiary)  now  owned  or  hereafter  acquired by it or on any income or revenues or rights in respect of any thereof, except:         (a)  Liens on property or assets of the Borrower and its Subsidiaries existing on the Second  Amendment and Restatement Effective Date and  encumbering property or assets with a fair market   value, and  securing obligations having a principal amount, in each case of  less than $25,000,000;                                        69





 






provided  that  (x)  such  Liens  shall  secure  only  those  obligations  which  they  secure  on  the  Second Amendment  and  Restatement  Effective  Date  and  extensions,  renewals  and  replacements  thereof permitted hereunder and (y) such Liens shall not apply to any other property or assets of the Borrower or any of the Subsidiaries;        (b)   any  Lien  existing  on  any  property  or  asset  prior  to  the  acquisition  thereof  by  the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the Second Amendment and Restatement Effective Date prior to the time such Person becomes a Subsidiary;  provided  that  (i) such  Lien  is  not  created  in contemplation  of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien does not apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien shall secure only those obligations  which  it  secures  on  the  date  of  such  acquisition  or  the  date  such  Person  becomes  a Subsidiary, as the case may be and extensions, renewals and replacements thereof permitted hereunder;        (c)  Liens  for  Taxes  not  yet  delinquent  or  which  are  being  contested  in  compliance  with Section 6.03;        (d)   carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business and securing obligations that are not overdue by more than 90 days or which are being contested in compliance with Section 6.03;        (e)  pledges  and  deposits  made  in  the  ordinary  course  of  business  in  compliance  with workmen’s compensation, unemployment insurance and other social security laws or regulations;        (f)   deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases  (other  than  Capital  Lease  Obligations),  statutory  obligations,  surety  and  appeal  bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;        (g)   zoning  restrictions,  easements,  rights-of-way,  restrictions  on  use  of  real  property  and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and do not materially detract from the marketability of the property subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;        (h)   purchase money security interests in real property, improvements thereto or equipment hereafter  acquired  (or, in  the  case  of  improvements,  constructed) by  the Borrower or any Subsidiary; provided  that  (i)  such  security  interests  secure  Indebtedness  not  prohibited  by  Section  7.01,  (ii)  such security  interests are incurred,  and the Indebtedness  secured  thereby is created, within 180 days after such acquisition (or construction) and (iii) such security interests do not apply to any other property or assets of the Borrower or any Subsidiary;        (i)   Liens in respect of judgments that do not constitute an Event of Default;        (j)   Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered pursuant to Section 2.14(a);        (k)   Liens on property or assets of the Borrower and its Subsidiaries securing Indebtedness permitted by Section 7.01(e); provided that (x) any such Lien shall attach to the property being acquired,  constructed or improved with such Indebtedness and (y) such Liens do not apply to any other property or  assets of the Borrower or any Subsidiary; and                                       70





 






      (l)   Liens  not  otherwise  permitted  by  the  foregoing  clauses  of  this  Section  7.02  securing obligations otherwise permitted by this Agreement in an aggregate principal and face amount at any time outstanding, when combined (without duplication) with the amount of Indebtedness or preferred stock of Subsidiaries incurred pursuant to Section 7.01(h) and then outstanding, not to exceed the greater of (x) $750,000,000 and (y) 15% of Consolidated Net Worth.  7.03 Mergers, Consolidations and Sales of Assets.        Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions (whether pursuant to a merger, consolidation or otherwise)) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and its Subsidiaries, taken as a whole, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (a) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (b) any Person (other than the Borrower) may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary, (c) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith  that  such liquidation or dissolution is  in the best interests  of the Borrower and is not materially disadvantageous to the Lenders and (d) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets, and the Borrower may sell, transfer, lease or otherwise dispose of any Subsidiary, in each case pursuant to one or more mergers or consolidations of any Subsidiary with other Persons (other than the Borrower)  so  long  as  after  giving  effect  to  such  merger  or  consolidation  or  series  of  mergers  and consolidations, as the case may be, the Borrower and its Subsidiaries have not sold, transferred, leased or otherwise disposed of all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole.  7.04 Business of Borrower and Subsidiaries.        Engage to any material extent in any business or business activity other than businesses of the type currently conducted by the Borrower and the Subsidiaries and business activities reasonably related thereto.  7.05 Maximum Leverage Ratio.        (a)   Permit the Leverage Ratio (a) on the last day of any Specified 2020 Leverage Period, in each case taken as one accounting period, to be greater than 5.00:1.00, (b) on the last day of the Specified 2021 Leverage Period, taken as one accounting period, to be greater than 4.50:1.00 and (c) at any time following  the  end  of  the  Specified  2021  Leverage  Period,  on  the  last  day  of  any  period  of  four consecutive fiscal quarters of the Borrower, in each case taken as one accounting period, to be greater than 4.00:1.00 (the “MaximumMaintenance Leverage Ratio”); provided that, in the event the Borrower consummates  a  Qualified  Acquisition  at  any  time  following  the  end  of  the  Specified  2021  Leverage Period, the Borrower may elect by notice to the Administrative Agent (which election may be made (x) at any time on or prior to the date that the next Compliance Certificate is delivered pursuant to Section 6.04(c)  following  the  consummation  of  such  Qualified  Acquisition  and  (y)  in  such  Compliance Certificate) that the MaximumMaintenance Leverage Ratio be (and, subject to this Section 7.05(a), the MaximumMaintenance Leverage Ratio shall be) (i) with respect to the last day of the fiscal quarter in which such Qualified Acquisition is consummated and with respect to the last day of each of the next succeeding three (3) fiscal quarters, 4.50:1.00 (a “Leverage Holiday”) and (ii) with respect to the last day                                       71





 






 of the fiscal quarter following the first anniversary of the consummation of such Qualified Acquisition  and thereafter, 4.00:1.00, provided further that, following any Leverage Holiday, the Borrower shall not be  entitled  to  make  another  such election unless  and  until the MaximumMaintenance  Leverage  Ratio  shall have been equal to or less than 4.00:1.00 on the last day of at least two fiscal quarters following the  end of the preceding Leverage Holiday.         (b)   Consummate a Share Repurchase at any time during the period commencing from and  after the 2020 Amendment Effective Date and ending on March 31, 2021 (such period, the “Compliance  Leverage Ratio Period”) if, after giving effect to such Share Repurchase, the Leverage Ratio would be  greater than 4.50:1.00.   7.06 Organization Documents.         Amend, modify or change the Organization Documents of the Borrower in a manner materially  adverse to the Lenders.   7.07 Sanctions.         Directly, or indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise  make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to  fund any activities of or business with any individual or entity, that, at the time of such funding, is the  subject  of  Sanctions,  or  in  any  country or territory  that,  at  the  time  of  such  funding,  is  a  Designated  Jurisdiction, except to the extent licensed by OFAC or otherwise authorized under U.S. law, or in any  other manner that will result in a violation by any individual or entity (including any individual or entity  participating  in  the  transaction,  whether  as  Lender,  Joint  Lead  Arranger,  Administrative  Agent,  L/C  Issuer, Swing Line Lender, or otherwise) of Sanctions.   7.08 Anti-Corruption Laws.         Directly,  or  to  the  knowledge  of  the  Borrower,  indirectly  use  the  proceeds  of  any  Credit  Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977,  the UK Bribery Act 2010, or other similar legislation in other jurisdictions.                                    ARTICLE VIII                         EVENTS OF DEFAULT AND REMEDIES   8.01 Events of Default.   Any of the following shall constitute an Event of Default:               (a)  any representation or warranty made or deemed made in or in connection with        this  Agreement  or  the  Borrowings  or  issuances  of  Letters  of  Credit  hereunder,  or  any        representation, warranty, statement or information contained in any report, certificate, financial        statement or other instrument furnished in connection with or pursuant to this Agreement, shall        prove to have been false or misleading in any material respect when so made, deemed made or        furnished;                                         72





 






      (b)   the Borrower fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document;        (c)  default shall be made in the due observance or performance by the Borrower of any  covenant,  condition  or  agreement  contained  in  Section  6.01(a)  (with  respect  to  the Borrower), 6.05(a) or 6.07 or in Article VII;        (d)   default shall be made in the due observance or performance by the Borrower of any covenant, condition or agreement contained in this Agreement (other than those specified in paragraphs (b) or (c) above) and such default shall continue unremedied for a period of 30 days after the earlier of (i) the date such default first becomes known to any Responsible Officer of the  Borrower  and  (ii)  written  notice  thereof  from  the  Administrative  Agent  to  the  Borrower (which notice will be given at the request of any Lender);        (e)  (i)  the  Borrower  or  any  Material  Subsidiary  shall  fail  to  pay any  principal  or interest, regardless of amount, due in respect of any Material Indebtedness, when and as the same shall become  due  and payable  (after  giving effect  to  any  applicable grace  period),  or  (ii) any other event or condition occurs (after giving effect to any applicable grace period) that results in any  Material  Indebtedness  becoming  due  prior  to  its  scheduled  maturity  or  that  enables  or permits the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf  to  cause  any  Material  Indebtedness  to  become  due,  or  to  require  the  prepayment, repurchase,  redemption  or  defeasance  thereof,  prior  to  its  scheduled  maturity  (other  than customary  non-default  mandatory  prepayment  requirements,  including  mandatory  prepayment events  associated  with  asset  sales,  casualty  events,  debt  or  equity  issuances,  extraordinary receipts or borrowing base limitations);        (f)   an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower or any Material  Subsidiary,  or  of  a  substantial  part  of  the  property  or  assets  of  the  Borrower  or  a Material Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law,  (ii)  the appointment  of a  receiver,  trustee,  custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets  of  the  Borrower  or  a  Material  Subsidiary  or  (iii)  the  winding-up  or  liquidation  of  the Borrower or any Material Subsidiary; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;        (g)   the  Borrower  or  any  Material  Subsidiary  shall  (i)  voluntarily  commence  any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (f) above, (iii) apply  for  or  consent  to  the  appointment  of  a  receiver,  trustee,  custodian,  sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part  of  the  property  or  assets  of the Borrower or any Material Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a                                 73





 






       general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability        or fail generally to pay its debts as they become due or (vii) take any action for the purpose of        effecting any of the foregoing;               (h)   a judgment for the payment of money in an amount in excess of $100,000,000        shall be  rendered  against  the  Borrower  or  any  Material Subsidiary and the same shall remain        undischarged for a period of 30 consecutive days during which execution shall not be effectively        stayed,  or  any  action  shall  be  legally  taken  by  a  judgment  creditor  to  levy  upon  assets  or        properties of the Borrower or any Material Subsidiary to enforce any such judgment; provided,        however, that any such judgment shall not be an Event of Default under this paragraph (h) if and       for so long as (i) the entire amount of such judgment in excess of $100,000,000 is covered by a       valid and binding policy of insurance between the defendant and the insurer covering payment       thereof and (ii) such insurer, which shall be rated at least “A” by A.M. Best Company, has been       notified of, and has not disputed the claim made for payment of the amount of such judgment;               (i)   an ERISA Event shall have occurred that results in liability of the Borrower and        its ERISA Affiliates exceeding $100,000,000; or               (j)   there shall have occurred a Change in Control.   8.02 Remedies Upon Event of Default.         If any Event of Default occurs and is continuing at any time, the Administrative Agent shall, at  the request of, or may, with the consent of, the Required Lenders, by written notice to the Borrower, take  any or all of the following actions:               (a)  declare the commitment of each Lender to make Loans and any obligation of the        L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and        obligation shall be terminated;               (b)   declare the unpaid principal amount of all outstanding Loans, all interest accrued        and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan        Document  to  be immediately  due  and  payable,  without presentment, demand, protest or other        notice of any kind, all of which are hereby expressly waived by the Borrower;               (c)  require that the Borrower Cash Collateralize the L/C Obligations (in an amount        equal to the then Outstanding Amount thereof); and               (d)   exercise on behalf of itself and the Lenders all rights and remedies available to it        and the Lenders under the Loan Documents;   provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with  respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to  make Loans  and any obligation of the L/C  Issuer to  make L/C Credit Extensions shall automatically  terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as  aforesaid shall automatically become due and  payable, and  the obligation of the Borrower to Cash   Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without   further act of the Administrative Agent or any Lender.                                         74





 






 8.03 Application of Funds.         After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically  become immediately due and payable and the L/C Obligations have automatically been required to be  Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.14 and 2.15, be applied by the Administrative  Agent in the following order:               First,  to  payment  of  that  portion  of  the  Obligations  constituting  fees,  indemnities,        expenses  and  other  amounts  (including  fees,  charges  and  disbursements  of  counsel  to  the        Administrative  Agent  and  amounts  payable  under  Article  III)  payable  to  the  Administrative        Agent in its capacity as such;               Second, to payment of that portion of the Obligations constituting fees, indemnities and        other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders        and  the  L/C  Issuer  (including  fees,  charges  and  disbursements  of  counsel  to  the  respective        Lenders  and  the  L/C  Issuer)  arising  under  the  Loan  Documents  and  amounts  payable  under        Article III, ratably among them in proportion to the respective amounts described in this clause        Second payable to them;               Third,  to  payment  of  that  portion  of  the  Obligations  constituting  accrued  and  unpaid        Letter of Credit Fees and interest on the Loans and L/C Borrowings, ratably among the Lenders        and the L/C Issuer in proportion to the respective amounts described in this clause Third held by        them;               Fourth, to (a) payment of that portion of the Obligations constituting accrued and unpaid        principal  of  the  Loans  and  L/C  Borrowings  and  (b)  Cash  Collateralize  that  portion  of  L/C        Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among the        Lenders  and  the  L/C  Issuer  in  proportion  to  the  respective  amounts  described  in  this  clause        Fourth held by them; and               Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full,        to the Borrower or as otherwise required by Law.         Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn  amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under  such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters  of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other  Obligations,  if  any,  in the order set  forth above or if the Obligations above have been fully satisfied,  released to the Borrower, if applicable.                                          75





 






                                  ARTICLE IX                              ADMINISTRATIVE AGENT   9.01 Appointment and Authority.        Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are incidental thereto.  The provisions of this Article (other than Section 9.06) are solely for the benefit of  the Administrative Agent, the Lenders and the L/C Issuer, and the Borrower shall not have rights as a  third party beneficiary of any of such provisions.   9.02 Rights as a Lender.         The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in  its capacity  as  a Lender as any other Lender and may exercise the same as though it  were not the  Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or  unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder  in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as  the financial advisor or in any other advisory capacity for and generally engage in any kind of business  with  the  Borrower  or  any  Subsidiary  or  other  Affiliate  thereof  as  if  such  Person  were  not  the  Administrative Agent hereunder and without any duty to account therefor to the Lenders.   9.03 Exculpatory Provisions.         The  Administrative  Agent  shall  not  have  any  duties  or  obligations except  those  expressly set  forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the Administrative Agent:               (a)  shall  not  be  subject  to  any  fiduciary  or  other  implied  duties,  regardless  of        whether a Default has occurred and is continuing;               (b)   shall  not  have  any  duty  to  take  any  discretionary  action  or  exercise  any        discretionary powers, except discretionary rights and powers expressly contemplated hereby or        by the other Loan Documents that the Administrative Agent is required to exercise as directed in        writing by the Required Lenders (or such other number or percentage of the Lenders as shall be        expressly provided for herein or in the other Loan Documents), provided that the Administrative        Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,        may expose the Administrative Agent to liability or that is contrary to any Loan Document or        applicable law, including for the avoidance of doubt any action that may be in violation of the        automatic  stay  under  any  Debtor  Relief  Law  or  that  may  effect  a  forfeiture,  modification  or        termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and               (c)  shall not, except as expressly set forth herein and in the other Loan Documents,        have  any  duty  to  disclose,  and  shall  not  be  liable  for  the  failure  to  disclose,  any  information        relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person        serving as the Administrative Agent or any of its Affiliates in any capacity.                                        76





 






       The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the   consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as   shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under  the circumstances as  provided in  Sections 10.01 and  8.02) or  (ii) in the absence of  its own gross  negligence or  willful misconduct as determined by a court of competent jurisdiction by final and  nonappealable judgment.  The Administrative Agent shall be deemed not  to  have knowledge of any  Default unless and until notice describing such Default is given in writing to the Administrative Agent by  the Borrower, a Lender or the L/C Issuer.        The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire  into (i) any statement, warranty or representation made in or in connection with this Agreement or any  other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder  or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the  covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any  Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan  Document or any other agreement, instrument or document or (v) the satisfaction of any condition set  forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be  delivered to the Administrative Agent.  9.04  Reliance by Administrative Agent.        The Administrative Agent shall be entitled to rely upon,  and shall not  incur any liability for  relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing   (including any electronic message, Internet or intranet website posting or other distribution) believed by   it to  be genuine and to  have been signed, sent or otherwise authenticated by the proper Person.  The   Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by   it to have been made by the proper Person, and  shall not  incur any liability for relying thereon.  In   determining compliance with  any condition hereunder to the making of a Loan,  or the issuance of a   Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the   Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer   unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C   Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative   Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants   and other experts selected by it, and  shall not be liable for any action taken or  not  taken by it in   accordance with the advice of any such counsel, accountants or experts.   9.05 Delegation of Duties.         The Administrative Agent may perform any and  all of its duties and  exercise its rights and  powers  hereunder or under any other Loan Document by or  through any one  or more sub-agents  appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform  any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of  the Administrative Agent and  any such sub-agent, and shall apply to  their respective activities in  connection with  the syndication of the credit facilities provided for herein as well  as activities as  Administrative Agent.                                         77





 






 9.06 Resignation of Administrative Agent.         (a)  The Administrative Agent may at any time give notice of its resignation to the Lenders,   the L/C Issuer and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders   shall have the right to appoint a successor (and so long as an Event of Default has not occurred and is   continuing, with the consent of the Borrower (not to be unreasonably withheld or delayed)), which shall   be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United   States.  If no such successor shall have been appointed by the Required Lenders and shall have accepted   such appointment within thirty (30) days after the retiring Administrative Agent gives notice of  its   resignation (or such earlier day as shall be agreed by the Required Lenders and so long as an Event of   Default has not occurred and is continuing, the Borrower) (the “Resignation Effective Date”), then the  retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C  Issuer, appoint (and so long as an Event of Default has not occurred and is continuing, with the consent  of the Borrower (not to be unreasonably withheld or delayed)) a successor Administrative Agent meeting  the qualifications set forth above.  Whether or not a successor has been appointed, such resignation shall  become effective in accordance with such notice on the Resignation Effective Date.        (b)    If the Person serving as  Administrative Agent is  a Defaulting Lender, the Required  Lenders may, to the extent permitted by applicable Law by notice in writing to the Borrower and such  Person remove such Person as the Administrative Agent and, so long as an Event of Default has not  occurred and is continuing, with the consent of the Borrower (not  to be unreasonably withheld or  delayed), appoint a  successor.  If no  such successor shall have been  so  appointed by the Required  Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be  agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless  become effective in accordance with such notice on the Removal Effective Date.        (c)   With effect from the Resignation Effective Date or the Removal Effective Date (as  applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and  obligations hereunder and under the other Loan Documents, (2) all payments and communications  provided to be made by, to or through the Administrative Agent shall instead be made by or to each  Lender and the L/C Issuer directly and (3) all determinations provided to be made by the Administrative  Agent shall instead be made by the Required Lenders, until such time as the Required Lenders appoint a  successor Administrative Agent as provided for above in  this Section.  Upon the acceptance of  a  successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become  vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative  Agent, and the retiring or removed Administrative Agent shall be discharged from all of its duties and  obligations hereunder or  under the other Loan  Documents (if not already discharged therefrom as  provided above in this Section).  The fees payable by the Borrower to a successor Administrative Agent  shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and  such successor.  After the retiring or removed Administrative Agent’s resignation hereunder and under  the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for  the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related  Parties in respect of  any actions taken or omitted to be  taken by any of  them while the retiring  Administrative Agent was acting as Administrative Agent.        Any resignation by or removal of Bank of America as  Administrative Agent pursuant to  this  Section shall also constitute its resignation or removal as L/C Issuer and Swing Line Lender.  Upon the  acceptance of a  successor’s appointment as Administrative Agent hereunder, (a) such successor shall  succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C                                        78





 






Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the  successor  L/C  Issuer  shall  issue  letters  of  credit  in  substitution  for  the  Letters  of  Credit,  if  any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer  to  effectively  assume  the  obligations  of  the  retiring  L/C  Issuer  with  respect  to  such Letters of Credit.  9.07 Non-Reliance on Administrative Agent and Other Lenders.        Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.  9.08 No Other Duties; Etc.        Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication agents, documentation agents or co-agents shall have any powers, duties or responsibilities under this Agreement  or  any  of  the  other  Loan  Documents,  except  in  its  capacity,  as  applicable,  as  the Administrative Agent, a Lender or the L/C Issuer hereunder.  9.09 Administrative Agent May File Proofs of Claim.        In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,  adjustment,  composition  or  other  judicial  proceeding  relative  to  the  Borrower,  the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due  and  payable  as  herein  expressed  or  by  declaration  or  otherwise  and  irrespective  of  whether  the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:              (a)  to  file  and  prove  a  claim  for  the  whole  amount  of  the  principal  and  interest       owing  and  unpaid  in  respect  of  the  Loans,  L/C  Obligations  and  all other Obligations that are       owing and unpaid and to file such other documents as may be necessary or advisable in order to       have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim       for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C       Issuer  and  the  Administrative  Agent  and  their  respective  agents  and  counsel  and  all  other       amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h)       and (i), 2.09 and 10.04) allowed in such judicial proceeding; and              (b)   to collect and receive any monies or other property payable or deliverable on any       such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the  Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such                                       79





 






 payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due  for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and  its  agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and  10.04.         Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or  consent  to  or  accept  or  adopt  on  behalf  of  any  Lender  or  the  L/C  Issuer  any  plan  of  reorganization,  arrangement,  adjustment  or  composition  affecting  the  Obligations  or  the  rights  of  any  Lender  or  to  authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.                                     ARTICLE X                                  MISCELLANEOUS  10.01 Amendments, Etc.         No amendment or waiver of any provision of this Agreement or any other Loan Document, and  no consent to any departure by the Borrower therefrom, shall be effective unless in writing signed by the  Required Lenders and the Borrower, as the case may be, and acknowledged by the Administrative Agent,  and  each  such  waiver  or  consent  shall  be  effective  only  in  the  specific  instance  and  for  the  specific  purpose for which given; provided, further, that        (a)   no such amendment, waiver or consent shall:                    (i)    extend  or  increase  the  Commitment  of  a  Lender  (or  reinstate  any             Commitment terminated pursuant to Section 8.02) without the written consent of such             Lender  whose  Commitment  is  being  extended  or  increased  (it  being  understood  and             agreed  that  a  waiver  of  any  condition  precedent  set  forth  in  Section  4.02  or  of  any              Default  or  a  mandatory  reduction  in  Commitments  is  not  considered  an  extension  or              increase in Commitments of any Lender);                     (ii)  postpone any date fixed by this Agreement or any other Loan Document              for any payment of principal (excluding voluntary prepayments), interest, fees or other              amounts  due  to  the  Lenders  (or  any  of  them)  hereunder  or  under  any  other  Loan              Document without the written consent of each Lender entitled to receive such payment              (subject to an extension of the Maturity Date of any Lender in accordance with Section              2.16);                     (iii) reduce the principal of, or the rate of interest specified herein on, any              Loan  or  L/C  Borrowing,  or  (subject  to  clause  (i)  of  the  final  proviso  to  this  Section              10.01) any fees or other amounts payable hereunder or under any other Loan Document              without the written consent of each Lender entitled to receive such payment of principal,              interest, fees or other amounts; provided, however, that only the consent of the Required              Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any              obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or              (ii) to amend any financial covenant hereunder (or any defined term used therein) even if              the effect of such amendment would be to reduce the rate of interest on any Loan or L/C                                         80





 






            Borrowing or to reduce any fee payable hereunder so long as the primary purpose of the             amendments thereto was not to reduce the interest or fees payable hereunder; or                    (iv)  change  any  provision  of  this  Section  10.01(a)  or  the  definition  of             “Required Lenders” without the written consent of each Lender directly affected thereby;             or                    (v)   release the Borrower from its obligations to pay principal or interest on             the  Loans  or  any  other  amounts  or  obligations  payable  by  the  Borrower  hereunder             (unless otherwise permitted by clauses (i), (ii) and (iii) above without the consent of each             Lender)  or  permit  the  Borrower  to  assign  or  otherwise  transfer  any  of  its  rights  or             obligations hereunder or under the other Loan Documents, without the written consent of             each Lender directly affected thereby; or                    (vi)  affect the pro rata sharing of payments among Lenders as provided for in             Section 2.13 or Section 8.03 without the written consent of each Lender directly affected             thereby; and              (b)   unless  also  signed  by  the  L/C  Issuer,  no  amendment,  waiver  or  consent  shall       affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating       to any Letter of Credit issued or to be issued by it;              (c)  unless also signed by the Swing Line Lender, no amendment, waiver or consent       shall affect the rights or duties of the Swing Line Lender under this Agreement; and              (d)   unless  also  signed  by  the  Administrative  Agent,  no  amendment,  waiver  or       consent shall affect the rights or duties of the Administrative Agent under this Agreement or any       other Loan Document;  provided, however, that notwithstanding anything to the contrary herein, (i) the Facilities Fee Letter may  be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii) no  Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or  consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all  Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than  Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or  extended without the consent of such Lender and (y) any waiver, amendment or modification requiring  the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more  adversely than other affected Lenders shall require the consent of such Defaulting Lender, (iii) each  Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the  Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the  United States supersedes the unanimous consent provisions set forth herein, (iv) the Required Lenders shall  determine whether or not to allow the Borrower to use cash collateral in the context of a bankruptcy or  insolvency proceeding and such determination shall be binding on all of the Lenders and (v) the L/C  Issuers and the Borrower may amend this Agreement to increase the Letter of Credit Sublimit and/or the  L/C  Fronting Sublimit in accordance with Section 2.03(l) without the consent of any other Lenders,  provided that such amendment shall not take effect until acknowledged in writing by the Administrative  Agent.                                        81





 






Notwithstanding the foregoing, if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision, and, in each case, such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders to the Administrative Agent within 10 Business Days following receipt of notice thereof.        Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans and the accrued interest and fees  in  respect  thereof  and  to  include  appropriately  the  Lenders  holding  such  credit  facilities  in  any determination of the Required Lenders and (ii) to change, modify or alter Section 2.13 or Section 8.03 or any  other  provision  hereof  relating  to  pro  rata  sharing  of  payments  among  the  Lenders  to  the  extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in clause (i) above.  10.02 Notices and Other Communications; Facsimile Copies.       (a)   Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing (including electronic format such as electronic mail or telecopier) and shall be delivered by hand or overnight courier service, mailed by certified or registered  mail  or  sent  by  telecopier  or  electronic  mail  as  follows,  and  all  notices  and  other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:              (i)   if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line       Lender, to the address, telecopier number, electronic mail address or telephone number specified       for such Person on Schedule 10.02; and              (ii)  if to any other Lender, to the address, telecopier number, electronic mail address       or  telephone  number  specified  in  its  Administrative  Questionnaire  (including,  as  appropriate,       notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire       then  in  effect  for  the  delivery  of  notices  that  may  contain  material  non-public  information       relating to the Borrower).        Notices  and  other  communications  sent  by  hand  or  overnight  courier  service,  or  mailed  by certified  or  registered  mail,  shall  be  deemed  to  have  been  given  when  received;  notices  and  other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of  business  on  the  next  business  day  for  the  recipient).   Notices  and  other communications delivered through electronic communications shall be subject to subsection (b).        (b)   Electronic Communications.  Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and  Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that  the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article  II if such                                       82





 






Lender  or  the  L/C  Issuer,  as  applicable,  has  notified  the  Administrative  Agent  that  it  is  incapable  of receiving notices under such Article by electronic communication.        Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted  to  an  Internet  or  intranet  website  shall  be  deemed  received  upon  the  deemed  receipt  by  the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.        (c)  The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE  AGENT  PARTIES  (AS  DEFINED  BELOW)  DO  NOT  WARRANT  THE  ACCURACY  OR COMPLETENESS  OF  THE  BORROWER  MATERIALS  OR  THE  ADEQUACY  OF  THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE  BORROWER  MATERIALS.   NO  WARRANTY  OF  ANY  KIND,  EXPRESS,  IMPLIED  OR STATUTORY,  INCLUDING  ANY  WARRANTY  OF  MERCHANTABILITY,  FITNESS  FOR  A PARTICULAR  PURPOSE,  NON-INFRINGEMENT  OF  THIRD  PARTY  RIGHTS  OR  FREEDOM FROM  VIRUSES  OR  OTHER  CODE  DEFECTS,  IS  MADE  BY  ANY  AGENT  PARTY  IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses  of  any  kind  (whether  in  tort,  contract  or  otherwise)  arising  out  of  the  Borrower’s  or  the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent  Party; provided, however, that in no event  shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).        (d)   Change of Address, Etc.  Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications  hereunder  by  notice  to  the  other  parties  hereto.   Each  other  Lender  may  change  its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on  record  (i)  an  effective  address,  contact  name,  telephone  number,  telecopier number and  electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.        (e)  Reliance by Administrative Agent, L/C Issuer and Lenders.  The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic  notices, Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not  preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood  by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify the Administrative                                       83





 






 Agent, the L/C Issuer, each Lender and the Related Parties of each of  them from all losses, costs,  expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or  on behalf of the Borrower; provided that such indemnity shall not, as to such Person, be available to the  extent that such losses, costs, expenses and liabilities are determined by a court of competent jurisdiction  by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of  such Person (or the gross negligence or willful misconduct of such Person’s controlled affiliates, officers,  directors or employees).  All telephonic notices to and  other telephonic communications with the  Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto  hereby consents to such recording.        (f)    Private Side Designation.  Each Public Lender agrees to cause at least one individual at  or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar  designation on the content declaration screen of the Platform in order to enable such Public Lender or its  delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including  United States Federal and state securities laws, to  make reference to  Borrower Materials that are not  made available through the “Public Side Information” portion of the Platform and that may contain  material non-public information with respect to the Borrower, its Affiliates or their respective securities  for purposes of United States Federal or state securities laws.  10.03 No Waiver; Cumulative Remedies; Enforcement.        No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay  by any such Person in exercising, any right,  remedy, power  or privilege hereunder shall operate as a  waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder  preclude any other or further exercise thereof or the exercise of any other right,  remedy, power or   privilege.  The rights, remedies, powers and privileges herein provided are cumulative and not exclusive   of any rights, remedies, powers and privileges provided by law.         Notwithstanding anything to the contrary contained herein or in any other Loan Document, the   authority to enforce rights and remedies hereunder and under the other Loan  Documents against the   Borrower or  any of  them shall be vested exclusively in,  and all actions and proceedings at law in   connection with such enforcement shall be instituted and maintained exclusively by, the Administrative   Agent in accordance with 9.01 for the benefit of all the Lenders and the L/C Issuer; provided, however,   that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the   rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and   under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights   and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the   case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff   rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lender from   filing proofs of claim or appearing and filing pleadings on  its own behalf during the pendency of a  proceeding relative to the Borrower under any Debtor Relief Law; and provided, further, that if at any   time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents,   then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent   pursuant to Section 9.01 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the   preceding proviso and  subject to Section 2.13, any Lender may, with  the consent of the Required   Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.                                         84





 






 10.04 Expenses; Indemnity; and Damage Waiver.         (a)  Costs and Expenses.  The Borrower shall pay (i) all reasonable and documented out-of-  pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,  charges and disbursements of counsel for the Administrative Agent), in connection with the preparation,  due diligence, negotiation, execution, delivery, administration and syndication of this Agreement and the  other  Loan  Documents  or  the  preparation,  negotiation,  execution,  delivery  and  administration  of  any  amendments,  modifications  or  waivers  of  the  provisions  hereof  or  thereof  (whether  or  not  the  transactions contemplated hereby or thereby shall be consummated), (ii) to the extent not already paid  pursuant  to  Section  2.03,  all  reasonable  and  documented  out-of-pocket  expenses  incurred  by  the  L/C  Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any  demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred  by the Administrative Agent, any Lender or the L/C Issuer (including the reasonable and documented  out-of-pocket fees, charges and disbursements of any counsel for the Administrative Agent, any Lender  or the L/C Issuer), in connection with the enforcement or protection of its rights following the occurrence  and during the continuance of an Event of Default (A) in connection with this Agreement and the other  Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or  Letters  of  Credit  issued  hereunder,  including  all  such  out-of-pocket  expenses  incurred  during  any  workout, restructuring or negotiations in respect of such Loans or Letters of Credit.  Notwithstanding the  foregoing, the obligation to reimburse the Lenders and the L/C Issuer for fees, charges and disbursements  of counsel in connection with the matters described in clause (iii) above shall be limited to one separate  law  firm  for  the  Administrative  Agent,  the  Lenders  and  the  L/C  Issuer  in  each  relevant  jurisdiction  (unless there shall exist an actual or perceived conflict of interest among the Administrative Agent, the  Lenders and the L/C Issuer, in which case, one or more additional law firms in each relevant jurisdiction  shall be permitted to the extent necessary to eliminate such conflict).         (b)   Indemnification  by  the  Borrower.   The  Borrower  shall  indemnify  the  Administrative  Agent (and any  sub-agent thereof), each  Lender, each Joint  Lead Arranger, each syndication agent  hereunder, each documentation agent hereunder and the L/C Issuer, and each Related Party of any of the  foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee  harmless from, any and all  losses, claims, damages, liabilities and related expenses (including  the  reasonable  and documented out-of-pocket fees, charges and disbursements of any  counsel for  any  Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the  Borrower arising  out of,  in connection with,  or as a  result  of (i)  the execution or  delivery of this  Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,  the performance  by  the  parties hereto of  their  respective obligations hereunder  or  thereunder  or  the  consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative  Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and  the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds  therefrom (including any refusal by the L/C Issuer to  honor a demand for  payment under a Letter  of  Credit if the documents presented in connection with such demand do not strictly comply with the terms  of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or  from  any  property owned, leased or  operated by  the Borrower or  any of its Subsidiaries, or any  Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual  or  prospective claim, litigation, investigation or  proceeding  relating to any of  the  foregoing, whether  based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and  regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising,  in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided  that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,                                         85





 






 damages, liabilities or related expenses (I) are determined by a court of competent jurisdiction by final   and nonappealable judgment to have resulted from (x) the gross negligence or willful misconduct of such   Indemnitee (or the gross negligence or willful misconduct of  such Indemnitee’s controlled affiliates,  officers, directors or employees) or (y) a breach in bad faith of such Indemnitee’s obligations under the  Loan Documents, in each case if the Borrower has obtained a final and nonappealable judgment in its  favor on such claim as determined by a court of competent jurisdiction or (II) result from any dispute  solely among the Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling  its role as Administrative Agent or any similar role under this Agreement and other than any claims   arising out of  any act  or omission of  the Borrower or any of its Affiliates.  Notwithstanding the  foregoing, the Borrower shall not  be liable for the fees, charges and disbursements of more than one  separate law firm for all Indemnitees in each relevant jurisdiction with respect to the same matter (unless  there shall exist an actual or perceived conflict of interest among the Indemnitees, in which case, one or  more additional law firms shall be permitted in  each relevant jurisdiction to the extent necessary to  eliminate such conflict).  Without limiting the provisions of Section 3.01(c), this Section 10.4(b) shall not  apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from  any non-Tax claim.        (c)   Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to  indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by them to the  Administrative Agent (or any sub-agent thereof), the L/C Issuer or  any Related Party of  any of  the  foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the  L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined  as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid  amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related  expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such  sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing  acting for the Administrative Agent (or any such sub-agent) or L/C  Issuer in connection with such  capacity.  The obligations of the Lenders under this subsection (c) are subject to the provisions of Section  2.12(d).        (d)    Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable  law, (i) the Borrower shall not assert, and the Borrower hereby waives, any claim against any Indemnitee,  on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or  actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan  Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or  thereby, any Loan or Letter of Credit or the use of the proceeds thereof and (ii) the Borrower shall not  assert, and the Borrower hereby waives, any claim against any Indemnitee, on any theory of liability, for  direct or actual damages arising out of, in connection with, or as a result of, this Agreement, any other  Loan Document, or any agreement or instrument contemplated hereby, except to the extent such damages  are determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted  from (x) such Indemnitee’s gross negligence, bad faith or willful misconduct or (y) such Indemnitee’s  material breach of this Agreement or any other Loan Document.  No Indemnitee referred to in subsection  (b) above shall be liable for any damages arising from the use by unintended recipients of any  information or  other materials distributed by it  through telecommunications, electronic or other  information transmission systems in connection with this Agreement or the other Loan Documents or the  transactions contemplated hereby or thereby, in each case not resulting from such Indemnitee’s gross  negligence, bad faith or willful misconduct as determined by a court of competent jurisdiction by final  and nonappealable judgment.                                         86





 






      (e)  Payments.   All  amounts  due  under  this  Section  shall  be  payable  not  later  than  ten Business Days after demand therefor.        (f)   Survival.   The  agreements  in  this  Section  shall  survive  the  resignation  of  the Administrative  Agent  and  the  L/C  Issuer,  the  replacement  of  any  Lender,  the  termination  of  the Commitments and the repayment, satisfaction or discharge of all the other Obligations.  10.05 Payments Set Aside.        To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to  be  fraudulent  or  preferential,  set aside  or  required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid  to  a  trustee,  receiver  or  any  other  party,  in  connection  with  any  proceeding  under  any  Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so  recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.  10.06 Successors and Assigns.        (a)  Successors and Assigns Generally.  The provisions of this Agreement and the other Loan Documents  shall  be  binding  upon  and  inure  to  the  benefit  of  the  parties  hereto and  thereto  and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this  Section,  (ii)  by  way  of  participation  in  accordance  with  the  provisions  of  subsection  (d)  of  this Section  or  (iii)  by  way  of  pledge  or  assignment  of  a  security  interest  subject  to  the  restrictions  of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person  (other  than  the  parties  hereto,  their  respective  successors  and  assigns  permitted  hereby, Participants  to  the  extent  provided  in  subsection  (d)  of  this  Section  and,  to  the  extent  expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.        (b)   Assignments by Lenders.  Any Lender may at any time assign to one or more assignees all  or  a  portion  of  its  rights  and  obligations  under  this  Agreement  and  the  other  Loan  Documents (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:              (i)   Minimum Amounts.                                        87





 






             (A)  in  the  case  of  an  assignment  of  the  entire  remaining  amount  of  the        assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an        assignment  to  a  Lender,  an  Affiliate  of  a  Lender  or  an  Approved Fund,  no  minimum        amount need be assigned; and               (B)   in  any  case  not  described  in  subsection  (b)(i)(A)  of  this  Section,  the        aggregate  amount  of  the  Commitment  (which  for  this  purpose  includes  Loans        outstanding  thereunder)  or,  if  the  Commitment  is  not  then  in  effect,  the  principal        outstanding  balance  of  the  Loans  of  the  assigning  Lender  subject  to  each  such        assignment, determined as of the date the Assignment and Assumption with respect to        such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified        in  the  Assignment  and  Assumption,  as  of  the  Trade  Date,  shall  not  be  less  than        $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default        has occurred and is continuing, the Borrower otherwise consents (each such consent not        to be unreasonably withheld or delayed); provided, however, that concurrent assignments        to  members  of  an  Assignee  Group  and  concurrent  assignments  from  members  of  an        Assignee  Group  to  a  single  assignee  (or  to  an  assignee  and  members  of  its  Assignee        Group) will be treated as a single assignment for purposes of determining whether such        minimum amount has been met;         (ii)  Required Consents.  No consent shall be required for any assignment except to        the extent required by subsection (b)(i)(B) of this Section and, in addition:               (A)  the  consent  of  the  Borrower  (such  consent  not  to  be  unreasonably        withheld or delayed) shall be required unless (1) an Event of Default pursuant to Section        8.01(b), (f) or (g) has occurred and is continuing at the time of such assignment or (2)        such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided        that  the  Borrower  shall  have  been  deemed  to  have  consented  to  any  such assignment        unless it shall have objected thereto by written notice to the Administrative Agent within        10 Business Days after receiving written notice thereof;               (B)   the  consent  of  the  Administrative  Agent  (such  consent  not  to  be        unreasonably withheld or delayed) shall  be required if such assignment is to a Person        that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to        such Lender;               (C)   the  consent  of  the  L/C  Issuer  (such  consent  not  to  be  unreasonably        withheld or delayed) shall be required for any assignment that increases the obligation of        the assignee to participate in exposure under one or more Letters of Credit (whether or        not then outstanding); and               (D)  the consent of the Swing Line Lender (such consent not to unreasonably        withheld  or  delayed)  shall  be  required  for  any  assignment  if  such  assignment  is  to  a        Person  that  is  not  a  Lender,  an  Affiliate  of  such  Lender  or  an  Approved  Fund  with        respect to such Lender.         (iii) Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent                                  88





 






       may, in its sole discretion, elect to waive such processing and recordation fee in the case of any        assignment.   The  assignee,  if  it  is  not  a  Lender,  shall  deliver to  the  Administrative Agent  an        Administrative Questionnaire.               (iv)  No Assignment to Certain Persons.  No such assignment shall be made (A) to the        Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting Lender or        any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute        any of the foregoing Persons described in this clause (B) or (C) to a natural person.               (v)  Certain Additional Payments.  In connection with any assignment of rights and        obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and        until, in addition to the other conditions thereto set forth herein, the parties to the assignment        shall  make  such  additional  payments  to  the  Administrative  Agent  in  an  aggregate  amount        sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases        by the assignee of participations or subparticipations, or other compensating actions, including        funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata        share of Loans previously requested but not funded by the Defaulting Lender, to each of which        the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all        payment  liabilities  then  owed  by  such  Defaulting  Lender  to  the  Administrative  Agent  or  any        Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full        pro  rata  share  of  all  Loans  and  participations  in  Letters  of  Credit  and  Swing  Line  Loans  in        accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event that any        assignment of rights and obligations of any Defaulting Lender hereunder shall become effective        under  applicable  Law  without  compliance  with  the  provisions  of  this  paragraph,  then  the        assignee  of  such  interest  shall  be  deemed  to  be  a  Defaulting  Lender  for  all  purposes  of  this        Agreement until such compliance occurs.   Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of   this Section, from and after the effective date specified in each Assignment and Assumption, the assignee   thereunder shall be  a party to this Agreement and, to  the extent of  the interest assigned by such   Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the   assigning Lender thereunder shall, to  the extent of  the interest assigned by such Assignment and   Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment   and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such   Lender shall cease to be a party hereto) but shall continue to be (x) entitled to the benefits of Sections   3.01, 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of   such assignment and (y) otherwise subject to the obligations set forth in Section 10.07.  Upon written   request of the Borrower to the assigning Lender, such assigning Lender shall use commercially   reasonable efforts to (x) return any related Note issued to the assigning Lender, or (y) in the case of any   loss, theft or destruction of any such Note, provide a customary lost note affidavit from the assigning   Lender in form and substance reasonably satisfactory to the Borrower.  Upon request, the Borrower (at   its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a   Lender of rights or obligations under this Agreement that does not comply with this subsection shall be   treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and   obligations in  accordance with  subsection (d) of  this Section.  Upon  request by the Borrower, the  Administrative Agent shall promptly notify the Borrower of any transfer by a Lender of its rights or   obligations under this Agreement not subject to the Borrower’s consent in the form of a list of current  Lenders, although the failure to give any such information shall not affect any assignments or result in  any liability by the Administrative Agent.                                        89





 






       (c)  Register.  The Administrative Agent, acting solely for this purpose as an agent of the   Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s   Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the   names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest)   of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time   (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower,   the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register   pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding   notice to the contrary.  In addition, the Administrative Agent shall maintain on the Register information   regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender.  The   Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and   from time to time upon reasonable prior notice.         (d)   Participations.  Any Lender may at any time, without the consent of, or notice to, the   Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a   Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or  Subsidiaries) (each, a   “Participant”) in all or a  portion of  such Lender’s rights and/or obligations under this Agreement   (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in   L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under   this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other   parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent,   the other Lenders  and  the L/C  Issuer shall continue to deal solely and  directly with such Lender in  connection with such Lender’s rights and  obligations under this Agreement.  Any agreement or  instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall  retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of  any provision of this Agreement; provided that such  agreement or  instrument may provide that such  Lender will not,  without the consent of the Participant, agree to  any amendment, waiver or  other  modification described in clauses (i) through (v) of  Section 10.01(a) that affects such Participant.  Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the  benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its  interest by assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each  Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided  such Participant agrees to be subject to Section 2.13 as though it were a Lender.  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.                                         90





 






       (e)  Limitation on Participant Rights.  A  Participant shall not be entitled to  receive any  greater payment under Section 3.01, 3.04 or 3.05 than the applicable Lender would have been entitled to  receive with respect to the participation sold  to such Participant if such Lender had  not  sold the  participation, unless the sale of the participation to such Participant is made with the Borrower’s prior  written consent.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to  the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant  and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it  were a Lender.        (f)    Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all  or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations  of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;  provided that no  such pledge or  assignment shall release such Lender  from any of its obligations  hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.        (g)    Resignation as L/C Issuer or Swing Line Lender after Assignment.  Notwithstanding  anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment  and Loans pursuant to subsection (b) above, Bank of America may, (i) upon thirty days’ notice to the  Borrower and the Lenders, resign as  L/C  Issuer and/or (ii) upon  thirty days’ notice to  the Borrower,  resign as Swing Line Lender.  In the event of any such resignation as L/C Issuer or Swing Line Lender,  the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line  Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall  affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be.  If  Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the  L/C  Issuer hereunder with respect to all Letters of Credit outstanding as  of  the effective date of its  resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the  Lenders to  make Base Rate Loans  or  fund risk participations in Unreimbursed Amounts pursuant to  Section 2.03(c)).  If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the  Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding  as of the effective date of such resignation, including the right to require the Lenders to make Base Rate  Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).  Upon the  appointment and  acceptance of a successor L/C  Issuer and/or Swing Line Lender, (1) such successor  shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C  Issuer or Swing Line Lender, as the case may be, and (2) the successor L/C Issuer shall issue letters of  credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make  other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of  America with respect to such Letters of Credit.        (h)   Assignment by MLPFS.  MLPFS may, without notice to the Borrower, assign its rights  and obligations under this Agreement to any other registered broker-dealer wholly-owned by Bank of  America Corporation to which all or substantially all of Bank of America Corporation’s or any of its  subsidiaries’ investment banking, commercial lending services or related businesses may be transferred  following the date hereof.  10.07 Treatment of Certain Information; Confidentiality.        Each of  the Administrative Agent, the Lenders and the L/C  Issuer agrees to maintain the  confidentiality of, and not disclose, the Information (as defined below), except that Information may be  disclosed (a) to its Affiliates, to its auditors and to its and its Affiliates’ respective partners, directors,                                        91





 






 officers, employees, agents, advisors and representatives who need to know such Information in   connection with this Agreement (it being understood that the Persons to whom such disclosure is made   will be informed of  the confidential nature of such  Information and  will be  subject to customary  confidentiality obligations of professional practice or agree to be bound by the terms of this Section (or  language substantially similar to this Section) with the disclosing party responsible for such person’s  compliance with this Section), (b) to the extent requested by any regulatory authority purporting to have  jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance  Commissioners), in which case the disclosing party agrees, to  the extent permitted by law, rule or  regulation and reasonably practicable, to inform the Borrower, except with respect to any customary  audit or customary examination conducted by bank accountants or any governmental bank regulatory  authority exercising examination or regulatory authority, in advance thereof, (c) to the extent required by  applicable laws or regulations or by any subpoena or similar legal process; provided that the Person   required to disclose such information shall take reasonable efforts (at the Borrower’s expense) to ensure   that any Information so disclosed shall be afforded confidential treatment, to the extent permitted by law,   rule or regulation and  reasonably practicable, to inform the Borrower, except with respect to any   customary audit or customary examination conducted by bank accountants or any governmental bank  regulatory authority exercising examination or regulatory authority, promptly in advance thereof, (d) to   any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other   Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or   the enforcement of rights hereunder or thereunder, (f) subject to such Person agreeing to be subject to the   provisions of this Section 10.07 or an agreement containing provisions at least as restrictive as those of   this Section 10.07, to (i) any assignee of or Participant in, or any prospective assignee of or Participant   in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or   its advisors) to any swap or derivative transaction under which payments are to be made by reference to   the Borrower and its obligations, this Agreement or  payments hereunder, (g) with the consent of the   Borrower, (h) to any rating agency when required by it in connection with rating the Borrower or the   credit facility provided hereunder, provided, that prior to any disclosure, such rating agency shall   undertake in  writing to  preserve the confidentiality of any Information received by it from the   Administrative Agent, the L/C Issuer or any Lender, (i) on a confidential basis to the CUSIP Service   Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with   respect to the Loans or (j) to the extent such Information (x) becomes publicly available other than as a   result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the   L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the   Borrower who is not, to the knowledge of the Administrative Agent, the L/C Issuer or such Lender, under   an obligation of confidentiality to the Borrower with  respect to such Information. In addition, the   Administrative Agent, the Lenders and the L/C Issuers may disclose the existence of this Agreement and   information about this Agreement to  market data collectors, similar service providers to the lending   industry and  service providers to  the Administrative Agent or  any of the Lenders or  L/C Issuers in   connection with the administration or servicing of this Agreement, the other Loan Documents and the   Commitments.         For purposes of this Section, “Information” means all information received from the Borrower or   any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses.         Each of the Administrative Agent, the Lenders and the L/C  Issuer acknowledges that (a) the   Information may include material non-public information concerning the Borrower or a Subsidiary, as   the case may be, (b) it has developed compliance procedures regarding the use of material non-public   information and (c) it will handle such material non-public information in accordance with applicable   Law, including United States Federal and state securities Laws.                                        92





 






 10.08 Set-off.         If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and  each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest  extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or  demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever  currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or  the account of  the Borrower against any and all of the obligations of the Borrower now  or hereafter  existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective  of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or   any other Loan Document and although such obligations of the Borrower may be  contingent or   unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or   office holding such deposit or obligated on  such indebtedness; provided, that, in the event that any   Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over   immediately to  the Administrative Agent for further application in  accordance with  the provisions of   Section 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other   funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (y) the   Defaulting Lender shall provide promptly to  the Administrative Agent a statement describing in   reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of   setoff.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in   addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or   their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the Borrower and   the Administrative Agent promptly after any such setoff and application, provided that the failure to give   such notice shall not affect the validity of such setoff and application.   10.09 Interest Rate Limitation.         Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or   agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest   permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall   receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the   principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining   whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds   the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any   payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary   prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal   parts the total amount of interest throughout the contemplated term of the Obligations hereunder.   10.10 Counterparts; Integration; Effectiveness.         This Agreement may be  executed in counterparts (and by different parties hereto in different   counterparts), each of which shall constitute an  original, but  all of which when  taken together shall   constitute a single contract.  This Agreement and the other Loan Documents constitute the entire contract   among the parties relating to the subject matter hereof and thereof and supersede any and all previous   agreements and understandings, oral or written, relating to the subject matter hereof and thereof.  Except   as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by   the Administrative Agent and when the Administrative Agent shall have received counterparts hereof   that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed                                        93





 






 counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be  effective as delivery of a manually executed counterpart of this Agreement.   10.11 Survival of Representations and Warranties.         All  representations  and  warranties  made  hereunder and  in any other Loan Document or other  document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the  execution and  delivery hereof and thereof.  Such representations and warranties have been or will be  relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the  Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent  or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain  unpaid or unsatisfied or any Letter of Credit shall remain outstanding.   10.12 Severability.         If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or  unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement  and  the  other  Loan  Documents  shall  not  be  affected  or  impaired  thereby  and  (b)  the  parties  shall  endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid  provisions  the  economic  effect  of  which  comes  as  close  as  possible  to  that  of  the  illegal,  invalid  or  unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or  render unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions  of  this  Section  10.12,  if  and to  the  extent  that the enforceability of any provisions in this Agreement  relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the  Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall  be deemed to be in effect only to the extent not so limited.   10.13 Replacement of Lenders.         If (i) any Lender requests compensation under Section 3.04, (ii) the Borrower is required to pay  any  additional  amount  to  any  Lender  or  any  Governmental  Authority  for  the  account  of  any  Lender  pursuant  to Section 3.01, (iii) a Lender (a “Non-Consenting Lender”) does not consent to a proposed  change, waiver, discharge or termination with respect to any Loan Document that has been approved by  the Required Lenders as provided in Section 10.01 but requires the unanimous consent of all Lenders or  all Lenders directly affected thereby (as applicable), (iv) any Lender is a Defaulting Lender or a Non-  Accepting Lender, or (v) any Lender delivers a notice pursuant to Section 3.02 (each Lender described in  the foregoing clauses (i) through (v), a “Replaced Lender”), then the Borrower may, at its sole expense  and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and  delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents  required  by,  Section  10.06),  all  of  its  interests,  rights  and  obligations  under  this  Agreement  and  the related  Loan  Documents  to  an  assignee  that  shall  assume  such  obligations  (which  assignee  may  be another Lender, if a Lender accepts such assignment), provided that:               (a)  the  Borrower  shall  have  paid  to  the  Administrative  Agent  the  assignment  fee        specified in Section 10.06(b);               (b)   such  Lender  shall  have  received  payment  of  an amount  equal to one  hundred        percent  (100%)  of  the  outstanding  principal  of  its  Loans  and  L/C  Advances,  accrued  interest                                        94





 






       thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan        Documents (including any amounts under Section 3.05) from the assignee (to the extent of such        outstanding  principal  and  accrued  interest  and  fees)  or  the  Borrower  (in  the case  of  all  other        amounts);               (c)  in  the  case  of  any  such  assignment  resulting  from  a  claim  for  compensation        under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment        will result in a reduction in such compensation or payments thereafter;               (d)   such assignment does not conflict with applicable Laws; and              (e)   in the case of any such assignment resulting from a Non-Consenting Lender’s       failure  to consent  to  a  proposed change,  waiver, discharge or termination  with  respect  to any       Loan Document, the applicable replacement bank, financial institution or Fund consents to the       proposed change, waiver, discharge or termination;  provided that the failure by such Replaced Lender to execute and deliver an Assignment and Assumption  shall not impair the validity of the removal of such Replaced Lender and the mandatory assignment of  such Replaced Lender’s Commitments and outstanding Loans and participations in L/C Obligations and  Swing Line Loans pursuant to this Section 10.13 shall nevertheless be effective without the execution by  such Replaced Lender of an Assignment and Assumption.         A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such  assignment and delegation cease to apply.   10.14 Governing Law; Jurisdiction; Etc.         (a)  GOVERNING  LAW.   THIS  AGREEMENT  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  IN  ACCORDANCE  WITH,  THE  LAW  OF  THE  STATE  OF  NEW  YORK  (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW  OF  THE STATE  OF NEW  YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES  THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.         (b)   SUBMISSION  TO  JURISDICTION.   THE  BORROWER  IRREVOCABLY  AND  UNCONDITIONALLY   SUBMITS,  FOR  ITSELF  AND ITS  PROPERTY, TO THE EXCLUSIVE   JURISDICTION  OF  THE COURTS  OF  THE STATE OF  NEW  YORK  SITTING IN NEW YORK   COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF  NEW  YORK,  AND  ANY  APPELLATE  COURT  FROM  ANY  THEREOF, IN  ANY  ACTION OR  PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN  DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH  OF  THE PARTIES  HERETO IRREVOCABLY   AND UNCONDITIONALLY  AGREES    THAT ALL  CLAIMS  IN RESPECT  OF ANY  SUCH  ACTION  OR  PROCEEDING  MAY  BE  HEARD  AND  DETERMINED  IN   SUCH  NEW  YORK  STATE   COURT  OR, TO  THE  FULLEST  EXTENT  PERMITTED   BY APPLICABLE  LAW,  IN SUCH FEDERAL  COURT.  EACH OF  THE PARTIES  HERETO  AGREES  THAT  A  FINAL JUDGMENT  IN  ANY SUCH  ACTION  OR  PROCEEDING  SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON  THE  JUDGMENT  OR  IN ANY  OTHER  MANNER  PROVIDED  BY  LAW.  NOTHING  IN THIS  AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE                                         95





 






 ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO   BRING ANY ACTION  OR PROCEEDING  RELATING  TO THIS AGREEMENT   OR ANY  OTHER  LOAN  DOCUMENT    AGAINST THE  BORROWER   OR ITS PROPERTIES IN THE COURTS   OF   ANY JURISDICTION.         (c)  WAIVER    OF   VENUE.       THE   BORROWER     IRREVOCABLY     AND  UNCONDITIONALLY    WAIVES, TO  THE FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  OBJECTION THAT  IT MAY  NOW  OR HEREAFTER  HAVE  TO THE  LAYING  OF  VENUE   OF ANY  ACTION  OR  PROCEEDING  ARISING OUT  OF  OR RELATING  TO  THIS  AGREEMENT    OR  ANY  OTHER  LOAN  DOCUMENT    IN ANY  COURT  REFERRED  TO  IN  PARAGRAPH    (B) OF  THIS SECTION.    EACH  OF  THE  PARTIES  HERETO   HEREBY  IRREVOCABLY   WAIVES,  TO THE FULLEST  EXTENT  PERMITTED  BY APPLICABLE  LAW,  THE  DEFENSE OF AN  INCONVENIENT  FORUM  TO THE MAINTENANCE   OF SUCH  ACTION  OR PROCEEDING IN ANY SUCH COURT.        (d)    SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO  SERVICE  OF  PROCESS IN THE  MANNER  PROVIDED   FOR  NOTICES  IN SECTION  10.02.  NOTHING   IN THIS AGREEMENT  WILL  AFFECT  THE  RIGHT  OF ANY PARTY HERETO TO  SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.  10.15 Waiver of Right to Trial by Jury.        EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED   BY  APPLICABLE LAW, ANY  RIGHT IT MAY  HAVE TO A  TRIAL BY  JURY IN  ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO  THIS  AGREEMENT    OR  ANY   OTHER  LOAN   DOCUMENT    OR  THE  TRANSACTIONS  CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY  OTHER   THEORY).  EACH  PARTY  HERETO  (A) CERTIFIES THAT NO  REPRESENTATIVE,  AGENT   OR ATTORNEY   OF ANY  OTHER  PERSON  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH OTHER  PERSON  WOULD  NOT, IN THE EVENT  OF LITIGATION,  SEEK  TO ENFORCE  THE  FOREGOING  WAIVER  AND  (B) ACKNOWLEDGES   THAT IT AND  THE  OTHER PARTIES  HERETO HAVE  BEEN  INDUCED TO ENTER  INTO THIS AGREEMENT  AND   THE  OTHER  LOAN  DOCUMENTS    BY, AMONG   OTHER   THINGS, THE  MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION.  10.16 Electronic Execution of Assignments and Certain Other Documents.        The words “execution,” “signed,” “signature”, “delivery” and words of like import in or related  to any document to  be  signed in connection with this Agreement and  the transactions contemplated  hereby (including without limitation Assignment and Assumptions, amendments or other modifications,  Loan Notices, Swing Line Loan Notices, waivers and consents) shall be deemed to include electronic  signaturesElectronic Signatures, deliveries or the keeping of records in electronic form, each of which  shall be of the same legal effect, validity or enforceability as a manually executed signature, physical  delivery or the use of a paper-based recordkeeping system, as the case may be, to the extent and as  provided for in any applicable law, including the Federal Electronic Signatures in Global and National  Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state  laws based on the Uniform Electronic Transactions Act;  provided that notwithstanding anything                                        96





 






 contained  herein  to  the  contrary  the  Administrative  Agent  is  under  no  obligation  to  agree  to  accept  electronic signaturesElectronic Signatures in any form or in any format unless expressly agreed to by the  Administrative  Agent  pursuant  to  procedures  approved  by  it.  Without  limiting  the  generality  of  the  foregoing,  the  Borrower  hereby  (i)  agrees  that,  for  all  purposes,  including  without  limitation,  in  connection  with  any  workout,  restructuring,  enforcement  of  remedies,  bankruptcy  proceedings  or  litigation  among  the  Administrative  Agent,  the  Lenders  and  the  Borrower,  electronic  images  of  this  Agreement  (including  with  respect  to  any  signature  pages  hereto)  shall  have  the  same  legal  effect,  validity and enforceability as any paper original and (ii) waives any argument, defense or right to contest  the validity or enforceability of this Agreement based solely on the lack of paper original copies thereof,  including with respect to any signature pages hereto. Upon the reasonable request of the Administrative  Agent  or  any  Lender,  any  Electronic  Signature  of  any  party  to  this  Agreement  shall,  as  promptly  as  practicable, be followed by such manually executed counterpart (which may be by fax or other electronic  imaging). For purposes hereof, “Electronic Signature” shall have the meaning assigned to it by 15 USC  §7006, as it may be amended from time to time.   10.17 USA PATRIOT Act.         Each Lender that is subject to the USA PATRIOT Act and the Administrative Agent (for itself   and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the   USA PATRIOT Act and the Beneficial Ownership Regulation, it is required to (a) obtain, verify and  record information that identifies the Borrower, which information includes the name and address of the  Borrower and other information that will allow such Lender or the Administrative Agent, as applicable,  to identify the Borrower in accordance with the USA PATRIOT Act and (b) obtain a certification from  the Borrower regarding the beneficial ownership of the Borrower to the extent required by the Beneficial  Ownership Regulation. The Borrower shall, promptly following a request by the Administrative Agent or  any Lender, provide all documentation and other information that the Administrative Agent or such  Lender requests in order to comply with its ongoing obligations under applicable “know your customer”  and anti-money laundering rules and regulations, including the USA PATRIOT Act.  10.18 No Advisory or Fiduciary Relationship.        In connection with all aspects of each transaction contemplated hereby (including in connection  with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower   acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and  other services regarding this Agreement provided by the Administrative Agent, the Lenders and the Joint  Lead Arrangers, are arm’s-length commercial transactions between the Borrower and its Affiliates, on  the one hand, and the Administrative Agent, the Lenders and the Joint Lead Arrangers, on the other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has  deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts, the  terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent, each Lender and each of the Joint Lead Arrangers each is and has been  acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not  been, is not and will not be acting as an advisor, agent or fiduciary, for the Borrower or any of Affiliates  or any other Person and  (ii) neither the Administrative Agent nor  any Lender nor any Joint Lead  Arranger has any obligation to the Borrower or any of  its Affiliates with respect to the transactions  contemplated hereby except those obligations expressly set forth herein and in the other Loan  Documents; and (c) the Administrative Agent, the Lenders  and the Joint Lead  Arrangers and  their  respective Affiliates may be engaged in a broad range of transactions that involve interests that differ  from those of the Borrower and its Affiliates, and neither the Administrative Agent nor any Lender nor                                        97





 






any  Joint  Lead  Arranger  has  any  obligation  to  disclose  any  of  such  interests  to  the  Borrower  or  its Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Lenders or the Joint Lead Arrangers with respect to  any  breach  or  alleged  breach  of  agency  or  fiduciary  duty  in  connection  with  any  aspect  of  any transaction contemplated hereby.  10.19 Lender ERISA Representation.        (a)  Each  Lender  and  each  L/C  Issuer  (x)  represents  and  warrants,  as  of  the  Second Amendment and Restatement Effective Date (or, if later, the date that such Lender or L/C Issuer became a  Lender  or  L/C  Issuer  party  hereto),  to,  and  (y)  covenants,  from  the  Second  Amendment  and Restatement Effective Date (or, if later, the date that such Lender or L/C Issuer became a Lender or L/C Issuer  party hereto)  to the  date  such Lender  or  L/C  Issuer  ceases  being a  Lender  or  L/C Issuer party hereto,  for  the  benefit  of,  the  Administrative  Agent,  the  Joint  Lead  Arrangers  and  their  respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:              (i)   such Lender or L/C Issuer is not using “plan assets” (within the meaning of 29       CFR §  2510.3-101,  as modified by Section 3(42) of ERISA) of one or more Benefit Plans in       connection with entrance into, participation in, administration of and performance of the Loans,       the Letters of Credit or, the Commitments or this Agreement,              (ii)  the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a       class exemption for certain transactions determined by independent qualified professional asset       managers), PTE 95-60 (a class exemption for certain transactions involving insurance company       general  accounts),  PTE  90-1  (a  class  exemption  for  certain  transactions  involving  insurance       company  pooled  separate  accounts),  PTE  91-38  (a  class  exemption  for  certain  transactions       involving  bank  collective  investment  funds)  or  PTE  96-23  (a  class  exemption  for  certain       transactions determined by in-house asset managers), is applicable with respect to such Lender’s       or  such  L/C  Issuer’s  entrance  into,  participation in,  administration of and  performance of the       Loans, the Letters of Credit, the Commitments and this Agreement,              (iii) (A) such Lender or L/C Issuer is an investment fund managed by a “Qualified       Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified       Professional  Asset  Manager  made  the  investment  decision  on  behalf  of  such  Lender  or  L/C       Issuer to enter into, participate in, administer and perform the Loans, the Letters of Credit, the       Commitments and this Agreement, (C) the entrance into, participation in, administration of and       performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies       the  requirements  of  sub-sections  (b)  through  (g)  of  Part  I  of  PTE  84-14  and  (D)  to  the  best       knowledge of such Lender or L/C Issuer, the requirements of subsection (a) of Part I of PTE 84-       14 are satisfied with respect to such Lender’s or such L/C Issuer’s entrance into, participation in,       administration of and performance of the Loans, the Letters of Credit, the Commitments and this       Agreement, or              (iv)  such  other  representation, warranty and covenant as may be agreed in writing       between the Administrative Agent, in its sole discretion, and such Lender or L/C Issuer.        (b)   In  addition,  unless  sub-clause  (i) in the  immediately  preceding  clause  (a) is  true  with respect to a Lender or L/C Issuer or such Lender or L/C Issuer has not provided another representation,                                       98





 






warranty  and  covenant  as  provided  in  sub-clause  (iv)  in  the  immediately  preceding  clause  (a),  such Lender or L/C Issuer further (x) represents and warrants, as of the Second Amendment and Restatement Effective Date (or, if later, the date that such Lender or L/C Issuer became a Lender or L/C Issuer party hereto), to, and (y) covenants, from the Second Amendment and Restatement Effective Date (or, if later, the date that such Lender or L/C Issuer became a Lender or L/C Issuer party hereto) to the date such Lender  or  L/C  Issuer  ceases  being  a  Lender  or  L/C  Issuer  party  hereto,  for  the  benefit  of,  the Administrative Agent, the Joint Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, that:             (i)   none  of  the  Administrative  Agent,  the  Joint  Lead  Arrangers  or  any  of  their       respective  Affiliates  is  a  fiduciary  with  respect  to  the  assets  of  such  Lender  or  L/C  Issuer       (including  in  connection  with  the  reservation  or  exercise  of  any  rights  by  the  Administrative       Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),       involved in (ii) the  Person  making  the  investment  decision  on  behalf  of  such  Lender  or  L/C Issuer with respect to thesuch Lender’s or L/C Issuer’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),(including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).              (iii) the  Person  making  the  investment  decision  on  behalf  of  such  Lender  or  L/C       Issuer with respect to the entrance into, participation in, administration of and performance of the       Loans,  the  Letters  of  Credit,  the  Commitments  and  this  Agreement  is  capable  of  evaluating       investment  risks  independently,  both  in  general  and with regard to particular transactions and       investment strategies (including in respect of the Obligations),             (iv)  the  Person  making  the  investment  decision  on  behalf  of  such  Lender  or  L/C       Issuer with respect to the entrance into, participation in, administration of and performance of the       Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or       the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this       Agreement and is responsible for exercising independent judgment in evaluating the transactions       hereunder, and             (v)   no fee or other compensation is being paid directly to the Administrative Agent,       or any Joint Lead Arranger or any of their respective Affiliates for investment advice (as opposed       to other services) in connection with the Loans, the Letters of Credit, the Commitments or this       Agreement.       (c)   The Administrative Agent and the Joint Lead Arrangers hereby inform the Lenders and L/C Issuers that each such Person is not undertaking to provide impartial investment advice, or to give  advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such  Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate  thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the  Commitments and this Agreement, (ii) may recognize a gain if it extended  the Loans, the Letters of  Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans,  the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in  connection with the transactions contemplated hereby, the Loan Documents or otherwise, including  structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking  fees,  agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees,  letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing                                        99





 






 fees,  term  out  premiums,  banker’s  acceptance  fees,  breakage  or  other  early  termination  fees  or  fees  similar to the foregoing.  10.20 Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions.         Solely to the extent any Lender or L/C Issuer that is an EEAAffected Financial Institution is a  party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any  other agreement, arrangement or understanding among any such parties, each party hereto acknowledges  that any liability of any Lender or L/C Issuer that is an EEAAffected 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  EEAthe  applicable  Resolution  Authority  and  agrees  and  consents  to,  and  acknowledges and agrees to be bound by:         (a)  the  application  of  any  Write-Down  and  Conversion  Powers  by an  EEAthe  applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender  or L/C Issuer that is an EEAAffected 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 EEAAffected  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 EEAthe applicable Resolution Authority.   10.21 Second Amendment and Restatement of Existing Credit Agreement.        Upon  the  execution  and  delivery  of  this  Agreement,  the  Existing  Credit  Agreement  shall  be amended  and  restated  to  read  in  its  entirety  as  set  forth  herein.   With  effect  from  and  including  the Second Amendment and Restatement Effective Date, (i) the Commitments of each Lender party hereto (the “Consenting Lenders”) shall be as set forth on Schedule 2.01 (and any Lender under the Existing  Credit Agreement that is not listed on Schedule 2.01 shall cease to be a Lender under the Existing Credit  Agreement and its commitment under the Existing Credit Agreement shall be terminated), and (ii) the  Applicable Percentage of the Consenting Lenders shall be redetermined based on the Commitments set  forth in the Schedule 2.01 and the participations of the Consenting Lenders in, and the obligations of the  Consenting Lenders in respect of, any Letters of Credit or Swing Line Loans outstanding on the Second  Amendment and Restatement Effective Date shall be reallocated to reflect such redetermined Applicable  Percentage.   10.22 Acknowledgement Regarding Any Supported QFCs.         To the extent that the Loan Documents provide support, through a guarantee or otherwise, for  any  swap  contract  or  any  other  agreement  or  instrument  that  is  a  QFC  (such  support,  “QFC  Credit  Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with  respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit                                       100





 






Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):  (a)   In  the  event  a  Covered  Entity  that  is  party  to  a  Supported  QFC  (each,  a  “Covered  Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC  and  the  benefit  of  such  QFC  Credit  Support  (and  any  interest  and  obligation  in  or  under  such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support  (and  any  such  interest,  obligation  and  rights  in  property)  were  governed  by  the  laws  of  the United States or a state of the United States.  In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under  the  Loan  Documents  that  might  otherwise  apply  to  such  Supported  QFC  or  any  QFC  Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent  than  such  Default  Rights  could  be  exercised  under  the  U.S.  Special  Resolution  Regime  if  the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.  (b)   As used in this Section 10.22, the following terms have the following meanings:        “BHC  Act  Affiliate”  of  a  party  means  an  “affiliate”  (as  such  term  is  defined  under,  and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.        “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in,  and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined  in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined  in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).        “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.        “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).                            [SIGNATURE PAGES FOLLOW]                                        101