exhibit101amendment






                                          EXHIBIT 10.1 – EXECUTION VERSION              AMENDMENT NO. 1 TO TERM LOAN CREDIT AGREEMENT         AMENDMENT NO. 1 dated as of May 7, 2020 (this “Amendment”) to TERM LOAN   CREDIT  AGREEMENT  dated  as  of  June  3,  2019  (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         (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                                                                                   1                                                                                  





 






     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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      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]                                                                             





 






                                                      MUFG Bank, 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]                                                                             





 






                      Exhibit A   [Attached.]                                                           





 






                                                                    EXHIBIT A  Conformed through Amendment No. 1 to Term Loan Credit Agreement, dated as of May 7, 2020                                                                              Deal CUSIP: 50540QAQ7                                                      Term Loan CUSIP: 50540QAR5                                                                  TERM LOAN CREDIT AGREEMENT                                    Dated as of June 3, 2019                          (Amended as of May 7, 2020)                                   among                   LABORATORY CORPORATION OF AMERICA HOLDINGS,                              as the Borrower,                                  BANK OF AMERICA, N.A.,                           as Administrative Agent,                       WELLS FARGO BANK, NATIONAL ASSOCIATION,                            as Syndication Agent,                                     and                    THE OTHER LENDERS PARTY HERETO                                           BANK OF AMERICA, N.A.                                    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.                                         19        1.03   Accounting Terms.                                                    1920        1.04   Rounding.                                                            2021        1.05   Times of Day.                                                        2021        1.06   Interest Rates.                                                      2021        1.07   Divisions.                                                           2021  ARTICLE II  THE COMMITMENTS AND LOANS                                             2122        2.01   Commitments.                                                         2122        2.02   Borrowing, Conversions and Continuations of Loans.                   2122        2.03   [Reserved].                                                          2223        2.04   [Reserved].                                                          2223        2.05   Voluntary Prepayments of Loans.                                      2223        2.06   Termination or Reduction of Aggregate Commitments.                   2324        2.07   Repayment of Loans.                                                  2324        2.08   Interest.                                                            2324        2.09   Fees.                                                                2425        2.10   Computation of Interest and Fees.                                    2425        2.11   Evidence of Debt.                                                    2425        2.12   Payments Generally; Administrative Agent’s Clawback.                   25        2.13   Sharing of Payments by Lenders.                                      2627        2.14   [Reserved].                                                          2728        2.15   Defaulting Lenders.                                                  2728        2.16   Certain Permitted Amendments.                                        2829  ARTICLE III  TAXES, YIELD PROTECTION AND ILLEGALITY                               2930        3.01   Taxes.                                                               2930        3.02   Illegality.                                                          3233        3.03   Inability to Determine Rates.                                        3334        3.04   Increased Costs.                                                     3435        3.05   Compensation for Losses.                                             3536        3.06   Mitigation Obligations; Replacement of Lenders.                      3637        3.07   Survival.                                                            3637  ARTICLE IV  CONDITIONS PRECEDENT TO LOANS                                         3637        4.01   Conditions to Closing Date.                                          3637                                                                                       ARTICLE V  REPRESENTATIONS AND WARRANTIES                                         3839        5.01   Organization; Powers.                                                3839        5.02   Authorization.                                                       3940        5.03   Enforceability.                                                      3940        5.04   Governmental Approvals.                                              3940        5.05   Financial Statements.                                                3940        5.06   No Material Adverse Change.                                          3940        5.07   [Reserved].                                                          4041        5.08   Litigation; Compliance with Laws.                                    4041        5.09   Federal Reserve Regulations.                                         4041        5.10   Investment Company Act.                                              4041        5.11   Use of Proceeds.                                                     4041                                            i          





 






      5.12   Tax Returns.                                                         4041        5.13   No Material Misstatements.                                           4142        5.14   Employee Benefit Plans.                                              4142        5.15   Environmental Matters.                                               4142        5.16   Senior Indebtedness.                                                 4142        5.17   No Default.                                                          4142        5.18   OFAC.                                                                4142        5.19   Anti-Corruption Laws and Sanctions.                                  4243        5.20   EEA Financial Institutions.                                          4243  ARTICLE VI  AFFIRMATIVE COVENANTS                                                 4243        6.01   Existence; Businesses and Properties; Compliance with Laws.          4243        6.02   Insurance.                                                           4243        6.03   Obligations and Taxes.                                               4243        6.04   Financial Statements, Reports, etc.                                  4344        6.05   Litigation and Other Notices.                                        4445        6.06   Maintaining Records; Access to Properties and Inspections            4546        6.07   Use of Proceeds                                                      4546        6.08   Anti-Corruption Laws and Sanctions                                   4546                                                                                      ARTICLE VII  NEGATIVE COVENANTS                                                   4546        7.01   Subsidiary Indebtedness                                              4546        7.02   Liens                                                                4647        7.03   Mergers, Consolidations and Sales of Assets                          4748        7.04   Business of Borrower and Subsidiaries                                4849        7.05   Maximum Leverage Ratio                                               4849        7.06   Organization Documents                                               4849        7.07   Sanctions                                                            4850        7.08   Anti-Corruption Laws.                                                4950  ARTICLE VIII  EVENTS OF DEFAULT AND REMEDIES                                      4950        8.01   Events of Default.                                                   4950        8.02   Remedies Upon Event of Default.                                      5052        8.03   Application of Funds.                                                5152  ARTICLE IX  ADMINISTRATIVE AGENT                                                  5153        9.01   Appointment and Authority.                                           5153        9.02   Rights as a Lender.                                                  5253        9.03   Exculpatory Provisions.                                              5253        9.04   Reliance by Administrative Agent.                                    5354        9.05   Delegation of Duties.                                                5354        9.06   Resignation of Administrative Agent.                                 5354        9.07   Non-Reliance on Administrative Agent and Other Lenders.              5455        9.08   No Other Duties; Etc.                                                5456        9.09   Administrative Agent May File Proofs of Claim.                       5556                                                                                      ARTICLE X  MISCELLANEOUS                                                          5556        10.01  Amendments, Etc.                                                     5556        10.02  Notices and Other Communications; Facsimile Copies.                  5758        10.03  No Waiver; Cumulative Remedies; Enforcement.                         5960        10.04  Expenses; Indemnity; and Damage Waiver.                              6061        10.05  Payments Set Aside.                                                  6163        10.06  Successors and Assigns.                                              6263        10.07  Treatment of Certain Information; Confidentiality.                   6566        10.08  Set-off.                                                             6667        10.09  Interest Rate  Limitation.                                           6768                                            ii          





 






10.10  Counterparts; Integration; Effectiveness.                            6768  10.11  Survival of Representations and Warranties.                          6768  10.12  Severability.                                                        6769  10.13  Replacement of Lenders.                                              6869  10.14  Governing Law; Jurisdiction; Etc.                                    6970  10.15  Waiver of Right to Trial by Jury.                                    6971  10.16  Electronic Execution of Assignments and Certain Other Documents.     7071  10.17  USA PATRIOT Act.                                                     7072  10.18  No Advisory or Fiduciary Relationship.                               7072  10.19  Lender ERISA Representation.                                         7172  10.20  Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions. 7273  10.21  Acknowledgement Regarding Any Supported QFCs.                        7274                                        iii          





 






SCHEDULES                 2.01          Commitments and Applicable Percentages        10.02         Certain Addresses for Notices   EXHIBITS         A             Form of Loan Notice        B             Form of Term Loan Note        C             [Reserved]        D             Form of Compliance Certificate        E             Form of Assignment and Assumption                                              iv 





 






                           TERM LOAN CREDIT AGREEMENT                 This  TERM  LOAN  CREDIT  AGREEMENT  is  entered  into  as  of  June  3,  2019  among  LABORATORY  CORPORATION  OF  AMERICA  HOLDINGS,  a  Delaware  corporation  (the  “Borrower”), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent.                 The Borrower has requested that the Lenders provide a term loan facility 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  covenant and agree as follows:                                                 ARTICLE I                                   DEFINITIONS AND ACCOUNTING TERMS           1.01  Defined Terms.                  As used in this Agreement, the following terms shall have the meanings set forth below:                 “2020 Amendment” means that certain Amendment No. 1 to Term Loan 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 Commitments” means the Commitments of all the Lenders. The aggregate principal  amount of the Aggregate Commitments in effect on the Closing Date is EIGHT HUNDRED AND FIFTY  MILLION DOLLARS ($850,000,000).                 “Agreement” means this Credit Agreement, as amended from time to time.                 “Applicable Percentage” means with respect to any Lender at any time, the percentage (carried  out to the ninth decimal place) represented by the principal amount of such Lender’s Loans at such time  over the aggregate outstanding principal amount of the Loans at such time. 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 Loans, the following percentages per annum, based upon  the Debt Rating as set forth below:                                                                                   Pricing             Debt Rating            Applicable Rate for    Applicable Rate for      Level                                     Eurodollar Rate Loans    Base Rate Loans                  S&P       Moody’s        I             > A-           >A3                0.550%                0.000%      II           = BBB+         Baa1                0.675%                0.000%      III          = BBB          Baa2                0.800%                0.000%      IV           = BBB-         Baa3                0.925%                0.000%      V            < BB+          <Ba1                1.175%                0.175%                 “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.                 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                                            2 





 






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 E 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, 2018, 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.                 “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).                 “BANA”  means  Bank  of  America,  N.A.,  in  its  capacity  as  joint  lead  arranger  and  joint  book  manager, and its successors and assigns.                 “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%.                                             3 





 






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”.                 “Borrower” has the meaning specified in the introductory paragraph hereto.         “Borrower Materials” has the meaning specified in Section 6.04.         “Borrowing” means a borrowing of Loans 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.                 “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.                 “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  Closing Date, (ii) who were nominated or elected to the board of directors, or whose                                             4 





 






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.                 “Closing Date” means the date on which all of the conditions precedent set forth in Section 4.01  are satisfied or waived in accordance with Section 10.01 and the Lenders have advanced the Loans pursuant  to Section 2.01.                 “Commitment” means, as to each Lender, its obligation to make Loans pursuant to Section 2.01 in  an aggregate principal amount equal to 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.                 “Compliance Certificate” means a certificate substantially in the form of Exhibit D.         “Compliance Leverage Ratio Period” has the meaning specified in Section 7.05(b).         “Confidential Information Memorandum” means the Confidential Information Memorandum of  the Borrower dated May 2019.                 “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 10.21(a).                 “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.                                             5 





 






               “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 when used with respect to Obligations, 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 Laws.                 “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, 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, 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 date of this Agreement, Crimea, Cuba, Iran, North Korea  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                                             6 





 






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,  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.                 ”Envigo Acquisition” means the consummation by Borrower of the acquisition of the shares of  Envigo International Holdings, Inc. pursuant to the terms of the Transaction Agreement, dated as of April  17, 2019, by and among Envigo International Holdings, Inc., Envigo RMS Holdings Corp., Covance Inc.,  Evolution Acquisition Corp., Covance Preclinical Corporation and Lab Holdings, LLC.                 “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                                             7 





 






(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 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                                              8 





 






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:                        (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                                             9 





 






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.                 “Excluded  Taxes”  means,  with  respect  to  the  Administrative  Agent,  any  Lender  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.                 “Facilities Fee Letter” means the letter agreement, dated as of April 30, 2019 among the Borrower,  Bank of America, MLPFS, Wells Fargo Bank and WFS.                 “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 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. 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.                                             10 





 






               “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.                 “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.          “ICE LIBOR” has the meaning specified in the definition of “Eurodollar Base Rate.”         “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                                             11 





 






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.                 “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  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,  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)    any Interest Period that begins before the Maturity Date for any Lender and would         otherwise end after such Maturity Date shall end on 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.                                              12 





 






      “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.                 “Joint Lead Arrangers” means BANA 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.                 “Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto and  their successors and assigns.                 “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.                 “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.                 “LIBOR  Screen  Rate”  means  the  ICE  LIBOR  quote  on  the  applicable  screen  page  the  Administrative Agent designates to determine ICE LIBOR (or such other commercially available source  providing such quotations as may be designated by the Administrative Agent from time to time).                 “LIBOR Successor Rate” has the meaning given to such term in Section 3.03(b).                 “LIBOR  Successor  Rate  Conforming  Changes”  means,  with  respect  to  any  proposed  LIBOR  Successor  Rate,  any  conforming  changes  to  the  definition  of  Base  Rate,  Interest  Period,  timing  and  frequency of determining rates and making payments of interest and other administrative matters as may  be  appropriate,  in  the  discretion  of  the  Administrative  Agent, to  reflect  the  adoption  of  such  LIBOR  Successor  Rate  and  to  permit  the  administration  thereof  by  the Administrative  Agent  in  a  manner  substantially consistent with market practice (or, if the Administrative Agent determines that adoption of  any  portion  of  such  market  practice  is  not  administratively  feasible  or  that  no  market  practice  for  the  administration  of  such  LIBOR  Successor  Rate  exists,  in  such  other  manner  of  administration  as  the  Administrative Agent determines in consultation with the Borrower).                 “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.                 “Loan Documents” means this Agreement, the 2020 Amendment, each Note and the Facilities Fee  Letter.                                             13 





 






               “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 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), 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 Loans 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.                                             14 





 






               “MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated 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.         “Note” or “Notes” means the Term Loan Notes, 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, 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.                 “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 second anniversary of the Closing 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).                 “Participant” has the meaning specified in Section 10.06(d).                                             15 





 






               “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.                 “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 10.21.                 “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                                              16 





 






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).         “Replaced Lender” has the meaning specified in Section 10.13.         “Required Lenders” means, at any time, Lenders holding in the aggregate more than 50% of the  outstanding Loans. 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  Credit  Agreement”  means  the  Second  Amended  and  Restated  Credit  Agreement,  originally dated as of December 21, 2011, as amended and restated as of December 19, 2014, as further  amended  as  of  July  13,  2016,  as  further  amended  and  restated  as  of  September  15,  2017,  among  the  Borrower, the lenders from time to time party thereto, and Bank of America, N.A., as administrative agent,  as amended from time to time.                 “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global, Inc., and  any successor thereto.                                              17 





 






               “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.         “Scheduled Unavailability Date” has the meaning given to such term in Section 3.03(b)(ii).         “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.                 “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.                 “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.                                             18 





 






      “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 10.21.                 “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.                 “Term Loan Note” has the meaning specified in Section 2.11.                 “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).                 “Transactions” has the meaning specified in Section 5.02.                 “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.                 “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 10.21.                 “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.                                             19 





 






               “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 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 and (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.                                              20 





 






             (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 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; provided, further, however, that  Capital Lease Obligations shall not include any obligations in respect of any lease, which would be required  to be classified and accounted for as an operating lease under GAAP prior to giving effect to ASC 842,  Leases or any proposals issued by Financial Accounting Standards Board in connection therewith.                 (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                                              21 





 






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  Interest Rates.                 The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative  Agent have any liability with respect to the administration, submission or any other matter related to the  rates  in  the  definition  of  “Eurodollar  Base  Rate”  or  with  respect  to  any  rate  that  is  an  alternative  or  replacement for or successor to any such rate (including, without limitation, any LIBOR Successor Rate)  or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.           1.07  Divisions.                 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 LOANS           2.01  Commitments.                 Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single  Loan to the Borrower in Dollars in an amount specified by the Borrower in accordance with Section 2.02  and not to exceed its Commitment in a single drawing on the Closing Date; provided that if for any reason  the full amount of such Lender’s Commitment is not fully drawn on the Closing Date, the undrawn portion  thereof shall automatically be cancelled thereon. The Loans shall be made by the Lenders ratably according  to their respective Applicable Percentage. Amounts borrowed under this Section 2.01 and repaid or prepaid  may not be reborrowed.           2.02  Borrowing, Conversions and Continuations of Loans.                 (a)    The  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 the 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 the 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                                             22 





 






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  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  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 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 4.01, 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.                 (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 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  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.                                             23 





 






         2.03  [Reserved].           2.04  [Reserved].           2.05  Voluntary Prepayments of Loans.                 (a)    The Borrower may, upon notice from the Borrower to the Administrative Agent, at any  time  or  from  time  to  time  voluntarily  prepay  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 prepayment. If such notice is given by the Borrower, unless  rescinded pursuant to the last sentence of this Section 2.05(a), the Borrower shall make such prepayment  and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount  prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment of the  outstanding Loans pursuant to this Section 2.05(a) shall be applied to the principal repayment installments  thereof as directed by the Borrower, and 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 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.           2.06  Termination or Reduction of Aggregate Commitments.                 (a)    Optional  Reductions.  The  Borrower  may,  upon  notice  to  the  Administrative  Agent,  terminate  the  Aggregate  Commitments,  or  from  time  to  time  permanently  reduce  the  Aggregate  Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later  than 12:00 noon three (3) Business Days prior to the date of termination or reduction and (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. Each notice delivered by the Borrower pursuant to this Section 2.06(a) shall be irrevocable;  provided that a notice of termination of the 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 Commitments pursuant to this Section 2.06  shall be permanent. Each reduction of the Commitments pursuant to this Section 2.06 shall be made to the  Commitments of the Lenders in accordance with their Applicable Percentage.                                              24 





 






      (b)    Notice. The Administrative Agent will promptly notify the Lenders of any termination  or  reduction of the Aggregate Commitments under this Section 2.06. Upon any reduction of the Aggregate  Commitments, the Commitment of each Lender shall be reduced by such Lender’s Applicable Percentage  of such reduction amount. All fees in respect of the Aggregate Commitments accrued until the effective  date  of  any  termination  of  the  Aggregate  Commitments  shall  be  paid  on  the  effective  date  of  such  termination.           2.07  Repayment of Loans.                 The remaining unpaid principal amount of the Loans, together with all other amounts owed with  respect to the Obligations hereunder, will be payable for each Lender on such Lender’s Maturity Date.           2.08  Interest.                 (a)    Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear  interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to  the sum of the Eurodollar Rate for such Interest Period plus the Applicable Rate and (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.                        (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.                 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.                                             25 





 






2.11  Evidence of Debt.                 The Loans 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 Loans 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 be in the form of Exhibit B (a “Term Loan 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.           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  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 the 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 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                                             26 





 






      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        Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s        Loan included in the 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 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, 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,  as  the  case  may  be,        severally  agrees  to  repay  to  the Administrative  Agent  forthwith  on  demand  the  amount  so        distributed to such Lender, in immediately available funds with interest thereon, for each day from        and including the date such amount is distributed to it to but excluding the date of payment to the        Administrative  Agent,  at  the  greater  of  the  Federal  Funds  Rate and  a  rate  determined  by  the        Administrative Agent in accordance with banking industry rules on interbank compensation.                        A notice of the Administrative Agent to any Lender or 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 the 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 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,  and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to  make its Loan 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 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 its 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 its 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, resulting in such Lender’s receiving  payment of a proportion of the aggregate amount of such Loans 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)                                             27 





 






participations in the 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 are purchased and all or any portion of the payment        giving  rise  thereto  is  recovered,  such  participations  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)        or  (y)  any  payment  obtained  by  a  Lender  as  consideration  for  the  assignment  of  or  sale  of  a        participation in any of its 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  [Reserved].           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, 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; third, 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; fourth, to the payment of any amounts owing to the Lenders as a result of        any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting        Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth,        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 sixth, to                                            28 





 






      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 in respect of which that        Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made  at a        time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be        applied solely to the pay the Loans of all non-Defaulting Lenders on a pro rata basis  prior to being        applied to the payment of any Loans of 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  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.                 (b)    Defaulting Lender Cure. If the Borrower and the Administrative Agent 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, that Lender will, to the extent applicable, purchase  at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative  Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by the Lenders in  accordance with their Applicable Percentages, 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 6 months after the Closing 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 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 Loans  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 Loans 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 Applicable Percentages.                 (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                                             29 





 






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 of the Accepting Lenders, including any amendments necessary to treat  the  applicable  Loans  of  the  Accepting  Lenders  as  a  new  “Class” or  “Tranche”  of  loans  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 Closing 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 of the Accepting Lenders, (ii) an increase in the interest rate  with respect to the Loans 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) [reserved], (v) 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 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  (vi)  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                                             30 





 






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 or Lender,  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.                 (c)    Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or (b) above,  the Borrower shall, and does hereby, indemnify the Administrative Agent and each Lender, 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  or  such  Lender, 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 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 (with a copy to the Administrative Agent), or by the Administrative Agent on its  own behalf or on behalf of a Lender, shall be conclusive absent manifest error.                 (ii)    Without limiting the provisions of subsection (a) or (b) above, each Lender 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 to deliver,  or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered  by such Lender to the Borrower or the Administrative Agent pursuant to subsection (e). Each Lender  hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to  such Lender 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, the termination of the Aggregate 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.                                             31 





 






      (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 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                                             32 





 






                      (C)    if a payment made to a Lender under any Loan Document would be subject to        U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the        applicable reporting requirements of FATCA (including those contained in Section 1471(b) or        1472(b) of the 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 have  any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the  account of such Lender, as the case may be. If the Administrative Agent or any Lender 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 or such Lender, 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 or such Lender, 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 or such Lender in the event the  Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to require the Administrative Agent or any Lender to make  available its Tax returns (or any other information relating to its taxes that it deems confidential) to the  Borrower or any other Person.           3.02  Illegality.                 If any Lender determines that any Law has made it unlawful, or that any Governmental Authority  has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund                                             33 





 






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.                 (a)    If  the  Required  Lenders  and/or  other  than  in  the  case  of  clause  (iii)  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 (i) 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, (ii) 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 (iii) 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,  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.                 (b)    Notwithstanding anything to the contrary in this Agreement or any other Loan Documents,  if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or  the  Borrower  or  Required  Lenders  notify  the  Administrative  Agent  (with,  in  the  case  of  the  Required  Lenders, a copy to Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:                                              34 





 






             (i)    adequate and reasonable means do not exist for ascertaining ICE LIBOR for any         requested Interest Period, including, without limitation, because the LIBOR Screen Rate is not         available or published on a current basis and such circumstances are unlikely to be temporary; or                        (ii)    the administrator of the LIBOR Screen Rate or a Governmental Authority having        jurisdiction over the Administrative Agent has made a public statement identifying a specific date        after which ICE LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for        determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), or                        (iii)  syndicated loans currently being executed, or that include language similar to that        contained in this Section 3.03(b), are being executed or amended (as applicable) to incorporate or        adopt a new benchmark interest rate to replace ICE LIBOR,           then,  reasonably  promptly  after  such  determination  by  the  Administrative  Agent  or  receipt  by  the  Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend  this Agreement to replace ICE LIBOR with an alternate benchmark rate (including any mathematical or  other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving  or  then  existing  convention  for  similar  U.S.  dollar  denominated  syndicated  credit  facilities  for  such  alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed  LIBOR Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m.  (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed  amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required  Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not  accept such amendment.           If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or  the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly  so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain  Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest  Periods), and (y) the Eurodollar Rate component shall no longer be utilized in determining the Base Rate.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion  to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest  Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of  Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.           Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no  event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.           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);                        (ii)   subject  any  Lender  to  any  Tax  of  any  kind  whatsoever  with  respect  to  this        Agreement or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments        to  such  Lender  in  respect  thereof  (except  in  each  case  for  Indemnified Taxes or  Other  Taxes                                             35 





 






      covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax        payable by such Lender); or                        (iii)  impose on any Lender or the London interbank market any other condition, cost         or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;                 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 to        reduce  the  amount  of  any  sum  received  or  receivable  by  such  Lender  hereunder  (whether  of        principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay        to such Lender, as the case may be, such additional amount or amounts as will compensate such        Lender, as the case may be, for such additional costs incurred or reduction suffered.                 (b)    Capital Requirements. If any Lender determines that any Change in Law affecting such  Lender or any Lending Office of such Lender or such Lender’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 capital  or  on  the  capital  of  such  Lender’s  holding  company,  if  any,  as a  consequence  of  this  Agreement,  the  Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender  or  such  Lender’s  holding  company could  have  achieved  but  for  such  Change  in  Law  (taking  into  consideration such Lender’s policies and the policies of such Lender’s holding company with respect to  capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender, as the case  may be, such additional amount or amounts as will compensate such Lender or such Lender’s holding  company for any such reduction suffered.                 (c)    Certificates for Reimbursement. A certificate of a Lender setting forth in reasonable detail  the amount or amounts necessary to compensate such Lender 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 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 to demand compensation  pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to  demand  such  compensation,  provided  that  the  Borrower  shall  not be  required to  compensate  a  Lender  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 notifies the Borrower of the Change in Law giving  rise to such increased costs or reductions and of such Lender’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:                                              36 





 






             (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.           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 or any Governmental  Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant  to  Section  3.02,  then  such  Lender  shall,  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, such designation or  assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case  may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii)  in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise  be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses  incurred by any Lender in connection with any such designation or assignment.                 (b)    Replacement of Lenders. If (i) any Lender requests  compensation under Section 3.04,  (ii) 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  Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.                                              37 





 






                                      ARTICLE IV                             CONDITIONS PRECEDENT TO LOANS   4.01  Conditions to Closing Date.                 The obligation of each Lender to make a Loan in an amount equal to its Commitment hereunder  on the Closing Date is subject to the satisfaction or waiver (in accordance with Section 10.01) 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 the Lenders, dated as        of  the  Closing  Date,  and  in  form  and  substance  reasonably  satisfactory  to  the  Administrative         Agent.                        (c)    Consummation of the Envigo Acquisition. The Envigo Acquisition shall have been        consummated substantially concurrently with the funding of the Loans.                        (d)    [Reserved.]                        (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 Closing 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, 2018 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 report on                                             38 





 






      Form 10-Q for its fiscal quarter ending on March 31, 2019 and (y) current reports on Form 8-K, as        filed with the SEC prior to the Closing Date, (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, (C) that 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        Closing Date, 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        Closing Date 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  4.01,  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 (D) that no Default or        Event of Default has occurred or is continuing as of the Closing Date and (ii) the current Debt        Ratings.                        (g)    Loan  Notice:  The  Administrative  Agent  shall  have  received  a  Loan  Notice  in        accordance with Section 2.02.                        (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 Closing 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.                        (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 Closing 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                                             39 





 






prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall  notify  the Borrower and the Lenders of the occurrence of the Closing Date, and such notice shall be conclusive  and binding.                                                 ARTICLE V                           REPRESENTATIONS AND WARRANTIES         The Borrower represents and warrants to the Administrative Agent and each of the Lenders, on  the Closing Date, 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 Borrowing 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.           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.                                             40 





 






         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, 2018, 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 March 31, 2019,  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 Closing Date, since December 31, 2018, 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 report on Form 10-Q for its fiscal quarter  ending on March 31, 2019 and (ii) current reports on Form 8-K, as filed with the SEC prior to the Closing  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.                 (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  will  be  used,  whether  directly  or  indirectly,  and  whether immediately, incidentally or ultimately, to purchase or carry Margin Stock or to extend credit to                                             41 





 






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 directly, or indirectly through one of its Subsidiaries, use the proceeds of the  Loans for general corporate purposes and to pay the fees and expenses incurred in connection with the  Transactions.           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 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 Closing 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.                                              42 





 






         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.           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), 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.                                              43 





 






      (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.           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                                             44 





 






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 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  may, but shall not be obligated to, make available to the Lenders 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 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                                            45 





 






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                 (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 Loans 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.                                              46 





 






                                     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), 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  Closing  Date  and  having  a  principal  amount (or, in the case of preferred stock, a liquidation preference), in each case, of 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;                 (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 Closing 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                                             47 





 






               (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 Closing  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; provided that (x) such Liens shall secure only  those obligations which they secure on the Closing 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  Closing 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                                             48 





 






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 under the  Revolving Credit Agreement;                 (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                 (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                                             49 





 






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 uponby 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  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  Loan,  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 or otherwise) of Sanctions.           7.08  Anti-Corruption Laws.                 Directly, or to the knowledge of the Borrower, indirectly use the proceeds of any Loan 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.                                              50 





 






                                     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 Borrowing 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;                        (b)    the Borrower fails to pay (i) when and as required to be paid herein, any amount         of principal of any Loan, or (ii) within five Business Days after the same becomes due, any interest         on any Loan, 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                                              51 





 






      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 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  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; and                        (c)    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                                             52 





 






make Loans 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, in each case without  further act of the Administrative Agent or any Lender.           8.03  Application of Funds.                 After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically  become immediately due and payable 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 2.15, 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 and interest) payable to the Lenders (including fees, charges        and disbursements of counsel to the respective Lenders) 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        interest on the Loans, ratably among the Lenders in proportion to the respective amounts described        in this clause Third held by them;                        Fourth,  to  payment  of  that  portion  of  the  Obligations  constituting  accrued  and  unpaid        principal of the Loans ratably among the Lenders 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.                                                          ARTICLE IX                                  ADMINISTRATIVE AGENT   9.01  Appointment and Authority.                 Each  of  the  Lenders  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  and  the  Lenders,  and  the  Borrower  shall  not  have  rights  as  a  third  party  beneficiary  of  any  of  such  provisions.                                              53 





 






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.                 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 or a Lender.                 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                                             54 





 






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, that by its terms must be fulfilled to the satisfaction  of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender  unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the  making of such Loan. 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.           9.06  Resignation of Administrative Agent.                 (a)    The Administrative Agent may at any time give notice of its resignation to the Lenders  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, 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                                              55 





 






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 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.           9.07  Non-Reliance on Administrative Agent and Other Lenders.                 Each Lender 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 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 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  or  a  Lender  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 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:                                             56 





 






                      (a)    to file and prove a claim for the whole amount of the principal  and interest owing         and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file         such other documents as may be necessary or advisable in order to have the claims of the Lenders         and the Administrative Agent (including any claim for the reasonable compensation, expenses,         disbursements  and  advances  of  the  Lenders  and  the  Administrative  Agent  and  their  respective         agents and counsel and all other amounts due the Lenders and the Administrative Agent under         Sections 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 to make such payments to the Administrative  Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly  to  the  Lenders,  to  pay  to  the  Administrative  Agent  any  amount  due  for  the  reasonable  compensation,  expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any  other amounts due the Administrative Agent 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 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 4.01 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, and/or decrease of any scheduled amortization, in respect               of the Loans of any Lender in accordance with Section 2.16);                                             57 





 






                             (iii)  reduce the principal of, or the rate of interest specified herein on, any Loan,               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  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 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 2.12(a), Section 2.13 or Section 8.03 without the written consent of each Lender               directly affected thereby; and                        (b)    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  Administrative  Agent  and  the  Borrower  may,  without  the  consent  of  any  Lender,  enter  into  amendments  or  modifications  to  this  Agreement  or  any  of  the  other  Loan  Documents  or  enter  into  additional  Loan  Documents  in  order  to  implement any LIBOR Successor Rate and LIBOR Successor Rate Conforming Changes or otherwise  effectuate the terms of Section 3.03(b) in accordance with the terms of Section 3.03(b).                                             58 





 






               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.                 Further,  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 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 or the Administrative Agent, 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  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 pursuant to Article II if such Lender, as applicable,  has                                              59 





 






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 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 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 and the Administrative Agent 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 and the Administrative Agent. 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  and  Lenders.  The Administrative Agent and the  Lenders shall be entitled to rely and act upon any notices (including telephonic 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 Agent, 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                                             60 





 






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 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 Section 9.01 for the benefit of all the Lenders; provided, however, that the foregoing shall  not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that  inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan  Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the  terms of Section 2.13) or (c) any Lender from filing proofs of claim or appearing and filing pleadings on  its own behalf during the pendency of a proceeding relative to the Borrower under any Debtor Relief Law;  and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and  under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to  the Administrative Agent pursuant to Section 9.01 and (ii) in addition to the matters set forth in clauses (b)  and (c) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the  Required  Lenders,  enforce  any  rights  and  remedies  available  to it  and  as  authorized  by  the  Required  Lenders.           10.04 Expenses; Indemnity; 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) all reasonable and documented  out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the reasonable                                             61 





 






and  documented  out-of-pocket  fees,  charges  and  disbursements  of any counsel for the Administrative  Agent  or  any  Lender),  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, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations  in respect of such Loans. Notwithstanding the foregoing, the obligation to reimburse the Lenders for fees,  charges and disbursements of counsel in connection with the matters described in clause (ii) above shall  be  limited  to  one  separate  law  firm  for  the  Administrative  Agent  and  the  Lenders  in  each  relevant  jurisdiction (unless there shall exist an actual or perceived conflict of interest among the Administrative  Agent and the Lenders, 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 and each syndication agent hereunder,  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 the use or proposed use of the proceeds therefrom, (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, 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                                             62 





 






Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender  severally agrees to pay to the Administrative Agent (or any such sub-agent) 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) 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) 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 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.                 (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,  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 or any Lender, or the Administrative Agent 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 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 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 under                                              63 





 






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 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; provided  that any such assignment shall be subject to the following conditions:                        (i)    Minimum Amounts.                               (A)   in  the  case  of  an  assignment  of  the  entire  remaining  amount  of the               assigning Lender’s Commitment or 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                                             64 





 






             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.                        (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        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  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                                            65 





 






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.                 (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 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 or the 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 and the other Lenders shall continue to deal solely and directly with such Lender in  connection  with  such  Lender’s  rights   and  obligations  under   this  Agreement.  Any agreement or  instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall  retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of  any provision of this Agreement; provided that such agreement or instrument may provide that such  Lender will not, without the consent of the Participant, agree to any amendment, waiver or other  modification described in 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                                            66 





 






commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the  United  States  Treasury  Regulations.  The  entries  in  the  Participant  Register  shall  be  conclusive  absent  manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register  as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the  contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent)  shall have no responsibility for maintaining a Participant Register.                 (e)    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.           10.07 Treatment of Certain Information; Confidentiality.                 Each of the Administrative Agent and the Lenders 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, 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                                             67 





 






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 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 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 or such Lender,  under an obligation of confidentiality to the Borrower with respect to such Information. In addition, the  Administrative Agent and the Lenders may disclose the existence of this Agreement and information about  this Agreement to market data collectors, similar service providers to the lending industry and service  providers  to  the  Administrative  Agent  or  any  of  the  Lenders  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 and the Lenders 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.           10.08 Set-off.                 If  an  Event  of  Default  shall  have  occurred  and  be  continuing,  each  Lender  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 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, irrespective of whether or not such Lender 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 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 and its respective Affiliates under this Section are in addition to  other rights and  remedies (including other rights of setoff) that such Lender or its respective Affiliates may have. Each  Lender 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.                                              68 





 






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  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 Loan, and shall continue  in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or  unsatisfied.           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, then such provisions shall be deemed to be in effect only to the extent not so limited.                                              69 





 






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 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, accrued interest thereon, accrued fees        and all other amounts payable to it hereunder and under the other Loan Documents (including any        amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and        accrued interest and fees) or the 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 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                                             70 





 






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  ADMINISTRATIVE  AGENT  OR  ANY  LENDER  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                                             71 





 






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,  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 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                                             72 





 






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 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 (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such  Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, 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 is not using “plan assets” (within the meaning of 29 CFR § 2510.3-        101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with  the        entrance into, participation in, administration of and performance of the Loans, the Commitments        or this Agreement,                        (ii)   the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a        class exemption for certain transactions determined by independent qualified professional asset        managers), PTE 95-60 (a class exemption for certain transactions involving insurance company        general  accounts),  PTE  90-1  (a  class  exemption  for  certain  transactions  involving  insurance        company  pooled  separate  accounts),  PTE  91-38  (a  class  exemption for certain transactions        involving  bank  collective  investment  funds)  or  PTE  96-23  (a  class  exemption  for  certain        transactions determined by in-house asset managers), is applicable with respect to such Lender’s        entrance into, participation in, administration of and performance of the Loans, the Commitments        and this Agreement,                        (iii)  (A)  such  Lender  is  an  investment  fund  managed  by  a  “Qualified  Professional         Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional         Asset Manager made the investment decision on behalf of such Lender to enter into, participate         in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into,         participation  in,  administration  of  and  performance  of  the  Loans,  the  Commitments  and  this         Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and         (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-         14 are satisfied with respect to such Lender’s entrance into, participation in, administration of  and         performance of the Loans, the Commitments and this Agreement, or                                             73 





 






                      (iv)   such other representation, warranty and covenant as may be agreed in writing         between the Administrative Agent, in its sole discretion, and such Lender.                 (b)    In  addition,  unless  sub-clause  (i)  in  the  immediately  preceding  clause  (a)  is  true  with  respect to a Lender or such Lender has not provided another representation, warranty and covenant as  provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and  warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date  such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for  the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the  Borrower, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved  in  such  Lender’s  entrance  into,  participation  in,  administration  of  and  performance  of  the  Loans,  the  Commitments and this Agreement (including in connection with the reservation or exercise of any rights  by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto  or thereto).           10.20 Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions.                 Solely to the extent any Lender 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 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 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 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 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                                             74 





 






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 10.21, 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]                                              75